JUDGMENT : JOYMALYA BAGCHI , J. 1. The appeal is directed against judgment and order dated October 05, 2021 passed by the learned Special Judge (POCSO), North and Middle Andaman, Mayabunder in Special POCSO Case No.12 of 2018/Special POCSO S.T No.21 of 2018 convicting the appellant for commission of offence punishable under section 6 of the POCSO Act and directing him to suffer rigorous imprisonment for life and pay fine of Rs.2,00,000/- (Rupees Two Lakhs only) in default to suffer rigorous imprisonment for one year more with a further direction 90% of fine, if realised, would be paid to the survivor. PROSECUTION CASE:- 2. Prosecution case as alleged against the appellant is as follows: 3. The survivor is a young girl who was studying in Class IX at the time of occurrence. Her mother had suddenly left the family. Her father was distraught over the incident. Taking advantage of the situation, the appellant approached the father of the survivor (PW-7) and proposed to perform a puja which would bring back his wife. Initially PW-7 was hesitated but subsequently relented. Thereafter the appellant performed puja at PW-7’s house. Then he informed PW-7 that to get better result he has to perform puja at the bank of Nallah i.e. creek. Thereafter on Tuesday he took the girl on his bicycle to the side of the Nallah. The following Saturday he again took the girl to the same spot and forcibly raped her. At that time family was residing in the house of the appellant. During their stay he repeatedly raped the child. He also threatened the girl not to disclose the incident to any one failing which she would face dire consequences even death. After one and half months PW-7 took his family back to his own residence. The girl fell ill due to cold and her menstrual cycle had stopped. At this juncture, the girl disclosed the incident and was taken to PHC Billiground. Medical Officer found her pregnant. 4. Statement of girl was recorded and was treated as First Information Report. Her statement was also recorded before the magistrate and charge sheet was filed. Charge was framed under section 6 of POCSO Act. Appellant pleaded not guilty and claimed to be tried. 5. During trial prosecution examined eighteen witnesses to prove the case. Defence of the appellant was one of false implication. Her statement was also recorded before the magistrate and charge sheet was filed. Charge was framed under section 6 of POCSO Act. Appellant pleaded not guilty and claimed to be tried. 5. During trial prosecution examined eighteen witnesses to prove the case. Defence of the appellant was one of false implication. It was his specific defence he had permitted PW-7 father of the girl to work as a share cropper. PW-7 did not give the appellant his share and dispute cropped up. As a result he was falsely implicated. 6. Trial Judge, after considering evidence of record, convicted the appellant and sentenced him as aforesaid. ARGUMENTS AT THE BAR:- 7. Mr. Sarkar for the appellant contends that PW-2 the minor is an unreliable witness. Her version in court is at variance to her earlier statement before the police/magistrate. In court she did not state that she had been subsequently raped. She was also silent with regard to threats held out by the appellant. Her father claimed that her daughter had come out with the incident before his mother in law. The said lady had not been examined. PW-2 also admitted there was quarrel between the appellant and her father, (PW-7). Appellant was falsely implicated due to dispute with PW-7. DNA report with regard to blood samples collected by police had not been produced. Hence, appellant is entitled to an order of acquittal. 8. Ms. Zinu for the State submits that the survivor is a 14 year of old school going girl. Her mother had deserted her. She was in an extremely vulnerable position. Appellant tricked her father and committed rape. At the material time, the family was staying in the house of the appellant, who had threatened the child to dire consequences. As a result the child could not come out with the incident. When the family returned to their own home and her menstrual cycle had stopped, she divulged the incident to her family members. She was found pregnant. Her deposition is corroborated by her father (PW-7) and other witnesses. Appeal is liable to be dismissed. EVIDENCE ON RECORD:- 9. PW-2 is the minor survivor. She deposed her mother had left them. Her uncle brought the appellant to their house. Appellant proposed to perform puja to bring her mother back. Initially her father was unwilling but finally relented. Her deposition is corroborated by her father (PW-7) and other witnesses. Appeal is liable to be dismissed. EVIDENCE ON RECORD:- 9. PW-2 is the minor survivor. She deposed her mother had left them. Her uncle brought the appellant to their house. Appellant proposed to perform puja to bring her mother back. Initially her father was unwilling but finally relented. Appellant performed puja in their house, then he stated that there would be better result if puja is performed on the bank of a Nallah. Accordingly on Tuesday appellant took her to the Nallah on his bicycle at 6.00 pm. On the following Saturday, again appellant took her on his bicycle to the Nallah around 7.00 pm and forcibly raped her. When she raised alarm appellant pressed her mouth. Then, appellant dropped her at the place where they were residing. After some days, there was quarrel between the appellant and her father. Then they returned to their residence. She was suffering from cough and cold and her menstrual cycle had stopped. Her father took her PHC Billiground where it was disclosed that she had become pregnant. Police recorded her statement. She put signature on the statement. Police took her to G.B.Pant Hospital, Port Blair where her pregnancy was terminated. She made statement before the magistrate. 10. During cross examination, she stated that appellant took the land of Hira and had given to her father to cultivate as a share cropper. It was agreed that her father would give 1/3 rd share to the appellant. Nallah is three minutes’ walk from where they were staying in the land of Hira. She denied the suggestion that her father had not given proper share to the appellant and there was quarrel over the issue. She also denied the suggestion she was not threatened by the appellant. 11. PW-7 is her father. He corroborated her daughter and stated that his wife had left them. Appellant stated he knew black magic and would bring his wife. He performed puja in their house. Then he took his daughter to a nearby secluded place beside the Nallah for performing puja for better result. During the next 1½ months appellant had taken his daughter to the bank of Nallah on a number of time. After 1 ½ month his mother-in-law come to their house and her daughter disclosed that she had become pregnant. Then he took his daughter to a nearby secluded place beside the Nallah for performing puja for better result. During the next 1½ months appellant had taken his daughter to the bank of Nallah on a number of time. After 1 ½ month his mother-in-law come to their house and her daughter disclosed that she had become pregnant. She also stated that she had kept quiet as appellant had threatened to kill her if she disclosed the incident to anyone. His daughter was suffering from fever, he brought her to PHC Billiground where the doctor found she was pregnant. Her daughter made statement before magistrate. 12. During cross examination though he admitted that he was given the land of Hira as a share cropper, he denied the suggestion that he had not given share to the appellant and there was quarrel. 13. PW-8 is the owner of the land. He stated he had given the land to the appellant for cultivation. During cross examination he corroborated the prosecution case that appellant had a house on the land of Hira. 14. PW-9 is the cousin of PW-7. He deposed that wife of PW-7 had left the family. Appellant went to the house of PW-7 to perform puja. Subsequently he came to know appellant had raped his daughter. 15. PW-10 is the Medical Officer who examined the survivor PW-2. She deposed there was no physical sign of forcible intercourse but her hymen was absent. Her pregnancy test showed that she was pregnant. She proved the medical reports. Police seized vaginal swab pubic hair of the survivor under a seizure list. 16. PW-6 and PW-11 are Nursing Officer attached to G.B.Pant Hospital, Port Blair. They deposed on 27.04.2018 pregnancy of the survivor was terminated in the hospital, blood sample was collected by police in their presence. 17. PW-3 and PW-4 deposed blood sample of appellant was also collected and seized by police pursuant to order of the Court. 18. PW-12 is the Police Officer who recorded the statement of the survivor (PW-2) in presence of Panchayat Samity member (PW-13). PW-15 drew up the formal FIR. PW-18 commenced investigation. He collected the birth certificate of the minor – Exhibit-8. He arranged for her medical examination and collected the report. He forwarded the survivor for recording of statement under section 164 Cr.P.C. He recorded statements of witnesses. PW-15 drew up the formal FIR. PW-18 commenced investigation. He collected the birth certificate of the minor – Exhibit-8. He arranged for her medical examination and collected the report. He forwarded the survivor for recording of statement under section 164 Cr.P.C. He recorded statements of witnesses. He collected the blood sample of survivor and fetus. He collected blood samples of the appellant. Blood samples were sent for DNA examination. The report was not received. He submitted charge sheet. Whether PW-2 is a reliable witness? 19. Mr.Sarkar has assailed the credibility of PW-2 on various grounds. He contends PW-2 has not stated the date on which she had been raped. Immediately after the incident she did not disclose it to her father. Only after she had become pregnant did she come out with the incident implicating the appellant. Evidence has also come on record that the relationship between the appellant and her father was strained. As a result he was falsely implicated. Forensic report confirming that the appellant is the biological father of the survivor’s fetus has not been proved. Genesis of incident:- 20. I have given anxious consideration to the aforesaid submissions. PW-2 was a 14 years old school going girl. Her mother had deserted the family. She was most vulnerable to sexual predation. Evidence on record shows that the appellant approached the family claiming to be a specialist in black magic and assured PW-7, father of the survivor, that he would bring back his wife by performing puja. He instilled confidence in PW-7 and performed puja in the house. Then, he told PW-7 that for better result he must peform puja on the bank of the Nallah. On such ruse he took the minor girl (PW-2) to the bank of Nallah in the evening on a Tuesday. On the following Saturday he again took her to the bank of Nallah and forcibly raped her. 21. Though the survivor has not been able to give a specific date, her deposition shows the chronology of events from which it is clear that the she was raped on a Saturday in the following week after puja was performed in their house. Failure to promptly disclose incident to father:- 22. Her credibility has been seriously questioned on the ground that she kept mum and did not inform her father about the incident. Failure to promptly disclose incident to father:- 22. Her credibility has been seriously questioned on the ground that she kept mum and did not inform her father about the incident. It is common knowledge that a minor survivor of sexual assault suffers from severe trauma. She was completely stunned by the predatory act of the appellant who claimed to be a friend of the family. Moreover during the incident the family was residing in the house provided by the appellant. These circumstances heavily weighed upon the minor girl and she kept mum till the family shifted to their own house and her menstrual cycle had stopped. 23. In this factual backdrop it cannot be said failure of the minor girl to report the incident immediately to her father is either unnatural or strikes at the root of her version. On the other hand the fact that the appellant had a house on the land of Hira is proved by PW-8 which probabilises the prosecution case that the family of the minor girl was residing in the house of the appellant while her father was undertaking share cropping work. 24. PW-9 is the cousin of PW-7. He corroborates the prosecution case that the PW-7’s wife had left the family and the appellant had gone to the latter’s house to perform puja. 25. These pieces of evidence lend credence to the genesis of the incident leading to the forcible rape on the girl under ruse of propitiating Gods to bring her mother back. Threats by appellant:- 26. It is argued PW-2 did not depose that she had been threatened by the appellant not to disclose the incident. 27. Perusal of the FIR and her statement before magistrate under section 164 Cr.P.C unequivocally show that the survivor stated that she had been threatened by the appellant. During cross examination she denied the suggestion that she had not been threatened by the appellant. PW-7, her father deposed that while disclosing the incident to her grandmother she had stated that she had been threatened by the appellant. 28. PW-2’s deposed that she was forcibly raped. When she has raised alarm her mouth was gagged. Her father PW-7 stated while disclosing the incident to family members she stated that she had been raped threatened by the appellant that she would face dire consequences if she disclosed the incident. 28. PW-2’s deposed that she was forcibly raped. When she has raised alarm her mouth was gagged. Her father PW-7 stated while disclosing the incident to family members she stated that she had been raped threatened by the appellant that she would face dire consequences if she disclosed the incident. In her statement before police and magistrate, she made similar assertion. 29. One must not lose sight of the fact that PW-2 is a minor girl and had to make repeated statements of the unsavoury incident before police, magistrate and thereafter in Court. In such a situation, it is patently absurd that a child of sexual violence will be able to give a parrot light rendition of the entire incident on each occasion. There is bound to be inadvertent slips here and there. Her deposition has to been appreciated in a holistic manner in the light of her previous statements before police and magistrate and other evidence on record particularly that of her father which proves that she was threatened by the appellant with dire consequences if she disclosed the incident. Non-examination of witness:- 30. Non-examination of grandmother has also been raised as a ground to disbelieve her version. After her mother left, the minor child was residing with her siblings and her father. There was no adult female member in the family. This is another reason which had contributed to the minor’s hesitance in promptly disclosing the act of sexual violence at the behest of the appellant who appears to be close to the family. 31. After the incident, the family shifted to their own residence. When grandmother visited the family, in her presence the survivor disclosed the incident. Her father PW-7 was also present and has proved this fact. Under such circumstances, non-examination of the grandmother does not impair the unfolding of the prosecution. Enmity between appellant and the father of the survivor:- 32. Mr. Sarkar submits appellant was not given his share of the crop by the father of the survivor (PW-7) and there was a quarrel. As a result appellant was falsely implicated. It is true the minor survivor (PW-2) stated that there was quarrel between the appellant and her father. But during cross examination she denied that quarrel was over share of cultivation. As a result appellant was falsely implicated. It is true the minor survivor (PW-2) stated that there was quarrel between the appellant and her father. But during cross examination she denied that quarrel was over share of cultivation. PW-7 father of the survivor categorically denied there was any quarrel or bad blood between him and the appellant over share of cultivation or otherwise. 33. Even if one takes into consideration the stray sentence by PW-2 that there was a quarrel, this minor fracas even if believed cannot be a ground to render the credible and consistent version of the survivor that she had been forcibly raped by the appellant on the bank of the Nallah improbable. 34. It is difficult for me to accept even if there was some hot exchange between appellant and PW-7, the same was sufficient to erode the corroborated version of the minor survivor and rebut the statutory presumption under section 29 of POCSO Act. Non-production of DNA report:- 35. It is argued the DNA report with regard to the blood samples of the fetus and that of the appellant and minor survivor has not been produced in Court. 36. Section 53A Cr.P.C, inter alia provides for DNA examination of an accused in a case of rape. However, this is an enabling provision to adduce forensic evidence in a case of rape. Unfortunately lack of forensic facilities in the country and more particularly in the Islands make it mere impossible to produce forensic evidence in all cases. To throw out a case merely on the ground of non-production of DNA report would lead to gross injustice, more particularly when the version of the minor survivor is convincing and reliable. 37. I have already discussed the reasons why I am inclined to believe the evidence of the minor with regard to forcible rape. Under such circumstances, throwing out a credible prosecution case due to failure of the investigating agency to produce DNA report would amount to travesty of justice. Whether subsequent acts of rape are proved:- 38. Finally it is argued that subsequent acts of rape have not been proved. I find substance in this argument. Charge though framed under section 6 of the POCSO Act refers to a single act of rape committed in the month of January 2018. There is no reference to subsequent acts of rape in the charge. Finally it is argued that subsequent acts of rape have not been proved. I find substance in this argument. Charge though framed under section 6 of the POCSO Act refers to a single act of rape committed in the month of January 2018. There is no reference to subsequent acts of rape in the charge. Even PW-2 in her deposition in Court does not speak of subsequent acts of rape. CONCLUSION:- 39. Under such circumstances, I am of the opinion the conviction of the appellant requires to be modified from one under section 6 to section 4 of the POCSO Act. 40. In light of the aforesaid, I alter the sentence awarded to the appellant and direct that the appellant shall suffer rigorous imprisonment for ten years and pay fine of Rs.2,00,000/- (Rupees Two Lakhs only) in default to suffer for one year more with a further direction 90% of fine, if realised, would be paid to the minor survivor. 41. Appeal is partly allowed. 42. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 43. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. I agree. Gaurang Kanth, J.