JUDGEMENT : (S.P. Khaund, J.) 1. Heard Mr Victor L Ralte, learned Amicus Curiae, for the appellant, Ms Mary L Khiangte, learned Additional Public Prosecutor, for the respondent No. 1/State of Mizoram and Mr Johny L Tochhawng, learned Legal Aid Counsel for the respondent No. 2. 2. This appeal is directed against the Judgment and Order dated 08.12.2021 in SC No. 32/2019 A/o Crl.Tr.No.334/2017 passed by the learned Presiding Officer, Fast Track Special Court (Rape and POCSO Act), Aizawl Judicial District (hereinafter also referred to as the trial Court), convicting – ‘A’ -name withheld (hereinafter also referred to as the appellant or the accused), under Section 376 AB of the Indian Penal Code, 1860 (‘IPC’, for short) and sentencing him to undergo Rigorous Imprisonment for 20 years. An order was already passed to set off the custodial sentence with the period of detention already undergone by the appellant. 3. The genesis of the case was that an FIR was lodged by the victim’s mother, ‘Y’ (hereinafter also referred to as the informant), contending that on 06.11.2018, at about 02:00 pm, the informant’s son-‘Z’, who was only 9 years old at that time, informed her that he saw his father-‘A’ straddled atop the victim, who was 7 years old at the time of the incident. The informant is the victim’s mother and the appellant-‘A’ is the victim’s father. The informant lodged an FIR with the Police at Vivakawn Police Station and Vivakawn PS Case No. 183 of 2018 was registered under Section 376 AB of the IPC, read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, for short) and investigation commenced. The Investigating Officer embarked upon the investigation. He recorded the statements of the witnesses and forwarded the victim for medical examination and for recording her statement under Section 164 of the Code of Criminal Procedure, 1973 (CrPC, for short). On conclusion of investigation, charge sheet was laid against the appellant under Section 376 AB IPC, read with Section 6 of the POCSO Act. At the commencement of trial, a formal charge under Section 376 AB IPC, read with Section 6 of the POCSO Act was framed and read over and explained to the appellant. The appellant abjured his guilt and claimed innocence. 4. At the commencement of trial, a formal charge under Section 376 AB IPC, read with Section 6 of the POCSO Act was framed and read over and explained to the appellant. The appellant abjured his guilt and claimed innocence. 4. To connect the appellant to the crime, the prosecution adduced the evidence of 9 (nine) witnesses and the accused examined one witness in defence. In connection with the incriminating materials projected by the prosecution, several questions were asked to the appellant under Section 313 CrPC. The appellant in his statement under Section 313 CrPC, has admitted that the victim is his daughter, but he has stated that this case against him has been fabricated. He has denied that he committed penetrative sexual assault on his daughter. He has admitted that he asked his son to lock the door, but he denied of having assaulted his daughter. He has admitted that he was inebriated at the time of the incident. He has contended that a false case has been brought up against him by his wife because at the time of the incident he was having an extra-marital affair and he was staying with another woman and thereafter, he came back to his wife, but after 4 months, his wife foisted this case against him. ARGUMENTS FOR THE APPELLANT:- 5. Learned counsel for the appellant has drawn the attention of this Court to the charges framed against the appellant. It is submitted that while framing charge, the appellant was confronted with the question, whether he committed sexual assault on his 7 year old daughter and thereby committed an offence under Section 376 AB read with Section 6 of the POCSO Act. It is argued that while charges were framed, the appellant was charged with offence of sexual assault, but while the appellant was convicted, he was convicted for offence of penetrative assault, to his prejudice. Moreover, charge was framed and the attention of the appellant was drawn while framing of charges only relating to offence committed on 06.11.2018, but he was erroneously convicted for having committed penetrative sexual assault. The evidence of the victim clearly reflects that on the date of the incident, i.e. on 06.11.2018, the appellant did not commit any offence of penetrative sexual assault nor did he commit any offence prescribed under Section 376 AB of the IPC. 6. The evidence of the victim clearly reflects that on the date of the incident, i.e. on 06.11.2018, the appellant did not commit any offence of penetrative sexual assault nor did he commit any offence prescribed under Section 376 AB of the IPC. 6. The IO’s evidence clearly reflects that he has affirmed that in her initial statement, the victim has not stated that the appellant has committed the offence of rape as described under Section 376 AB of the IPC. The appellant has admitted that he has committed sexual assault on his daughter, which is an offence described under Section 9 of the POCSO Act and not under Section 6 of the POCSO Act. 7. It is contended that without framing charges, the appellant was convicted for a higher offence. ARGUMENTS FOR THE RESPONDENT- 8. Learned Additional Public Prosecutor laid stress in her argument that the appellant was convicted under Section 376 AB IPC and as charge was framed under Section 376 AB of the IPC, it cannot be held that the appellant has been prejudiced and has been punished for a higher offence. Section 2 (1) (a) of the POCSO Act reads:- “ (1) In this Act, unless the context otherwise requires, - (a) "aggravated penetrative sexual assault" has the same meaning as assigned to it in section 5;” Section 5 (l) and Section 5 (m), reads:- “ 5. Aggravated penetrative sexual assault.— (l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or (m) whoever commits penetrative sexual assault on a child below twelve years.” 10. The statement of the victim under Section 164 CrPC clearly reflects that she was sexually assaulted by her own father, not once but thrice. It has to be borne in mind that the victim was only 7 years old at the time of the incident and when her evidence was recorded in the Court, she was only 8 years old. It is not discernible that a minor child who was only 7 years old at the time of the incident will be able to give consistent statements and one cannot expect such a young child to have photographic memory. 11. It is submitted that not only the victim, but her brother was only 10 years old when his evidence was recorded and he was only 9 years old when he witnessed the incident. 11. It is submitted that not only the victim, but her brother was only 10 years old when his evidence was recorded and he was only 9 years old when he witnessed the incident. His statement under Section 164 CrPC is similar to his deposition. 12. It is further submitted that the appellant’s petition (appeal memo) for appeal from the jail reflects that he has not denied of having committed the offence of sexual assault. 13. Learned Legal Aid Counsel for the respondent No. 2 has submitted that the argument of the learned counsel for the appellant projects minor contradictions, which can be safely ignored. Learned counsel for the respondent No. 2, informant has also conceded to the arguments submitted by the learned Additional Public Prosecutor and has submitted that this is a case of heinous offence, where the protector has become the predator. 14. The remaining part of the arguments submitted by the learned counsel for the appellant and the respondents will be discussed at the appropriate stage. 15. Now, the question that falls for consideration is that whether the learned trial Court has erroneously convicted the appellant under Section 376 AB of the IPC. Discussions and Decision: 16. To decide this appeal, the evidence is re-appreciated. 17. The informant-‘Y’ deposed as PW-1 that the appellant is her husband and her daughter, i.e., the victim is also the appellant’s biological daughter, and her date of birth is 24.01.2011. She further deposed that on 06.11.2018, while she was returning from the market, her son-Z informed her that her husband was sleeping with her daughter in their house. She immediately rushed to the Zonuam Outpost and informed the Police about the incident. When she returned home, she did not see her daughter and the appellant and she was informed that the appellant has gone to Berampuimmual. She informed the matter to IUCAW and the matter was referred to Vivakawn Police Station and she submitted her FIR on the same day. 18. The FIR was written according to her narration. Her daughter was taken to the Civil Hospital, Aizawl, on the same evening for medical examination. Her statement was recorded by the Police. Her daughter was taken to the Magistrate for recording her statement. Her son’s statement was also recorded by the Magistrate. She has proved the FIR as Exhibit- P-1 and Exhibit-P-1-a as her signature. 19. Her daughter was taken to the Civil Hospital, Aizawl, on the same evening for medical examination. Her statement was recorded by the Police. Her daughter was taken to the Magistrate for recording her statement. Her son’s statement was also recorded by the Magistrate. She has proved the FIR as Exhibit- P-1 and Exhibit-P-1-a as her signature. 19. At this juncture, it is pertinent to mention that, in his statement under Section 313 CrPC, the appellant has admitted that on the day of the incident, he went to Berampuimual to get some alcohol, and his daughter followed him up to Berampuimual. 20. Learned counsel for the respondent No. 2 and the learned Additional Public Prosecutor have also submitted that the cross-examination of PW-1 does not at all rebut the evidence. 21. On the contrary, learned Amicus Curiae for the appellant has submitted that the cross-examination of PW-1 reflects that her son informed her that the appellant was sleeping with the victim, but he did not specifically describe that the appellant had committed sexual assault on the victim. 22. It has to be borne in mind that although the appellant has denied that he assaulted his daughter, he has admitted in his statement under Section 313 CrPC that after the incident, his daughter followed him up to Berampuimual and this statement of the appellant has been substantiated by the evidence of Y (PW-1), who deposed that her daughter along with her husband went to Berampuimual. 23. On the submissions on behalf of the learned counsel for the appellant and the respondents, it is necessary to delve into the evidence of the victim and her brother. As the victim-‘X’ was only 8 years old, oath was not administered. Several questions were asked to her to assess her intelligence and thereafter, her evidence was recorded. She was at home with her father and elder brother. It was afternoon, and her mother went out to sell vegetables. Her elder brother was having his food. At that time, her father slept with her on the bed. He asked her elder brother to lock the door from inside. Her father removed her panties and his own pants. He laid atop her and committed sexual assault by inserting his penis into her vagina. PW-2 further deposed that she experienced pain and her father was inebriated. Later, her father took her to Berampuimual to purchase alcohol. He asked her elder brother to lock the door from inside. Her father removed her panties and his own pants. He laid atop her and committed sexual assault by inserting his penis into her vagina. PW-2 further deposed that she experienced pain and her father was inebriated. Later, her father took her to Berampuimual to purchase alcohol. PW-2 also deposed that prior to this incident, while they were residing on the lower level of the building belonging to Mathipi, her father had committed sexual assault on her by fondling his private parts in her presence. She further deposed that her brother informed her mother about the incident. 24. In her cross-examination, she denied the suggestion by the defence that the appellant did not insert his penis into her vagina, in the last incident. She also denied that the appellant did not insert his penis into her vagina, during the first incident. She has affirmed that she did not inform her mother about the incident, but her brother (PW-3) did. This cross-examination of the victim is similar to the deposition of her mother, who has deposed in her cross-examination that she did not ask the victim about the incident. She has also affirmed through her cross-examination that at the time of the incident, she went out to sell vegetables. 25. Although the defence tried to refute the charges by tactfully cross- examining the witnesses, yet it can be safely held that through cross- examination of PW-1 and PW-2, the defence failed to rebut the overwhelming evidence of the witnesses. The key witnesses are minors aged about 8 and 10 years, whereas the informant is a woman who sells vegetables for a living. The naiveté of the witnesses has to be considered while assessing the evidence. 26. I do not find any infirmity in the decision of the learned trial Court, when the learned trial Court has observed that there is overwhelming evidence against the appellant to hold him guilty of the offence of sexual assault. 27. PW-3 is the victim’s elder brother and his evidence corroborates the evidence of PW-1 and PW-2. 28. The IO was also cross-examined at length. R Zonunsangi is the IO and he deposed as PW-9. 27. PW-3 is the victim’s elder brother and his evidence corroborates the evidence of PW-1 and PW-2. 28. The IO was also cross-examined at length. R Zonunsangi is the IO and he deposed as PW-9. No contradictions could be elicited through the cross-examination of the witnesses, vis-à-vis the cross-examination of the IO, except for the fact that a minor contradiction could be elicited through the cross-examination of the minor victim-‘X’, vis-à-vis the cross-examination of the IO, which will be discussed at the appropriate stage. 29. The victim’s brother-‘Z’ deposed as PW-3 that the appellant is his father. He could not recollect the exact date and month of the incident, but he could recall that the incident occurred in the previous year (from 06.06.2019). At the time of the incident, he was with his father (appellant) and his younger sister (X). It was afternoon and his father was inebriated. While he was having food, his father asked him to lock the door. After he latched the door, he saw his father lying atop his sister on the bed. His father asked him to close the bedroom door. Later, his father went out with his younger sister to Berampuimual. When his mother returned, he informed his mother about the incident and told her that his father was lying atop his sister. He along with his mother went to Zonuam Outpost. They were also accompanied by his father, who was arrested by the Police. The Police recorded his statement and his sister was forwarded for medical examination. 30. In his cross-examination, he has deposed that he did not attend school on the day of the incident, as it was a holiday. He has affirmed through his cross-examination that the appellant did not remove his shirt, but removed his pants at the time of the incident. He has also affirmed through his cross- examination that the victim’s panties were pulled down and later the appellant and the victim went to Berampuimual to fetch alcohol. 31. Thus, the evidence of PW-1. 2 and 3 clearly depicts that when the informant went out to sell vegetables, the appellant who was inebriated committed sexual assault on his minor daughter. This act of the appellant is deplorable. The evidence of PWs-1, 2 and 3 are corroborating and consistent. 32. 31. Thus, the evidence of PW-1. 2 and 3 clearly depicts that when the informant went out to sell vegetables, the appellant who was inebriated committed sexual assault on his minor daughter. This act of the appellant is deplorable. The evidence of PWs-1, 2 and 3 are corroborating and consistent. 32. The brother-in-law of the appellant, Lalruatfeli, deposed as PW-4 and he has proved the birth certificate of the victim seized in connection with this case. He deposed that he accompanied his elder sister (‘Y’) to IUCAW. He affixed his signature on the seizure memo as a witness. He has proved his signature on the seizure list as Exhibit-P-(2)-(a). He has proved the birth certificate of the victim as Exhibit-M-1. Thus, there is not even an iota of doubt that the date of birth of the victim was 24.01.2011 and she was only 7 years old at the time of the incident, which occurred on 06.11.2018. 33. A neighbour, Tlanghmingthangi, deposed as PW-5 that the appellant is known to him as he resides in the same locality. He accompanied the complainant to the IUCAW. This witness has also proved the birth certificate as Exhibit-M-1 and his signature on the seizure list as Exhibit-P-2 (b). 34. Two Medical officers were also examined as witnesses. Dr Zosangpuii deposed as PW-6 that in the year 2018, he was posted as Gynecologist at Civil Hospital, Aizawl and on 06.11.2018, he examined the victim aged about 7/8 years and found the victim to be mentally and physically normal. He could not detect any injuries on the victim. He found a mild abrasion on right side of labia minora. On examination of her private parts, he found that her hymen was not intact. He collected vaginal swab, but did not receive the result of laboratory test for spermatozoa. He further deposed that it is possible that without full penetration there is possibility of hymenal tear. He has proved the Medico-Legal Report as Exhibit-P-3 and Exhibit-P-3 (a) as his signature. 35. In his cross-examination, he has also affirmed that the mild abrasion detected would have been less than three days old and hymenal tear was not recent. 36. Thus, the medical evidence also reveals that the victim was physically assaulted by none other than her father, that too, not once but several times. 35. In his cross-examination, he has also affirmed that the mild abrasion detected would have been less than three days old and hymenal tear was not recent. 36. Thus, the medical evidence also reveals that the victim was physically assaulted by none other than her father, that too, not once but several times. There appears to be no justified ground why the victim would falsely implicate her father. The plea taken by the appellant that his wife has brought up a false case has thus, been negated by the clinching evidence against the appellant, substantiated by the medical evidence of PW-6. 37. Dr Lalmuanawma Jongte deposed as PW-7 that on 06.11.2018, he was posted as Medical Officer at Civil Hospital, Aizawl and on that day, he received requisition for examination of the appellant aged about 35 years to assess his mental, physical and sexual ability. On examination, he found the appellant to be mentally fit and capable of sexual activity. He could not detect any indication of violence or injury. He has proved the Medico-Legal Report as Exhibit-P-4. 38. His cross-examination is not noteworthy. 39. The Judicial Magistrate First Class (Magistrate, for short), Lalhriatpuli, deposed as PW-8 that on endorsement from the CJM, Aizawl, she recorded the statement of the victim on 09.11.2018. The victim has stated that the appellant had touched her private parts on three occasions with his fingers. The victim also stated before her that the appellant inserted his penis into her vagina on one occasion and on one occasion, the appellant forced her to touch his private parts. 40. The IO, PW-9, has deposed that on 06.11.2018, the FIR was received at Vivakawn Police Station, submitted by ‘Y’, which was registered as Vivakawn PS Case No. 183/2018, under Section 376 AB IPC, read with Section 6 of the POCSO Act and he was endorsed with the investigation. He was the Inspector of IUCAW at that point of time. He recorded the statements of the complainant and arrested the appellant and forwarded the victim for medical examination, on the same day. He seized the birth certificate of the victim and recorded the statement of the victim in the premises of IUCAW, according to their preference. On 17.11.2018, the victim was forwarded to the Magistrate, who recorded her statement. He went to the place of occurrence (PO, for short) and prepared the sketch map. He seized the birth certificate of the victim and recorded the statement of the victim in the premises of IUCAW, according to their preference. On 17.11.2018, the victim was forwarded to the Magistrate, who recorded her statement. He went to the place of occurrence (PO, for short) and prepared the sketch map. On finding a prima facie case, he submitted charge sheet against the appellant under Section 376 AB IPC, read with Section 6 of the POCSO Act. He has proved his signature on the charge sheet as Exhibit-P-5 (a). 41. The only contradiction that could be elicited through the cross- examination of PW-9, vis-à-vis the cross-examination of the victim is that the victim could not recollect the exact number of times, the appellant had allegedly committed penetrative sexual assault on her. She could clearly recollect only two incidents. The IO has also affirmed that the victim stated in her initial statement that on 06.11.2018, the appellant thrust his penis between her thighs and pubic region, but she did not state that the appellant inserted his penis into her vagina. Thus, the IO has affirmed that the appellant had committed sexual assault on his minor daughter. The IO has also affirmed through his cross-examination that the victim could not recollect the exact number of times, when the appellant had allegedly committed penetrative sexual assault on her, but she could recollect only two incidents. Thus, there is not even an iota of doubt that the appellant committed penetrative sexual assault on his daughter, on earlier occasion and committed sexual assault on his daughter on 06.11.2018. The core question is that whether the appellant has committed an offence under Section 376 AB IPC on 06.11.2018 or before 06.11.2018. 42. Learned counsel for the appellant has relied on the decision of Hon’ble the Supreme Court in K Venkateshwarlu –Vs- State of Andhra Pradesh; reported in (2012) 8 SCC 73 , wherein it has been held that- “ Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.” 43. The facts and circumstances of this case are however, not similar to the case relied upon by the appellant. The evidence is loud and clear in this case. The victim was sexually assaulted by her own father and this was witnessed by her brother. Being minors, both the victim and her brother could not understand the depravity of this crime. The evidence of the victim has been substantiated by the evidence of the Medical Officer, PW-6, who has also detected mild abrasion on the vagina of the victim. In her initial statement, the victim has stated that she experienced pain at the time of the incident. Thus, the evidence of victim-‘X’ is corroborated and supported by the evidence of her brother, ‘Z’, MO-PW-7, and Magistrate, PW-8. 44. Learned counsel for the respondent No. 2 has relied on the decision of Hon’ble the Supreme Court in Ganesan –Vs- State represented by its Inspector of Police, reported in (2020) 10 SCC 573 , wherein it has been observed that- “ 10. In the present case, the appellant-accused has been convicted by the learned trial Court for the offence under Section 7, punishable under Section 8 of the POCSO Act. In the present case, the appellant-accused has been convicted by the learned trial Court for the offence under Section 7, punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned trial Court as well as the relevant evidence on record, more particularly the deposition of PW1-father of the victim, PW2-mother of the victim and PW3-victim herself. It is true that PW2-mother of the victim has turned hostile. However, PW3-victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross-examined. We do not see any good reason not to rely upon the deposition of PW3 – victim. PW3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled proposition of law, even there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy. ***** ***** ***** ***** ***** 11. On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality.” 45. Reverting back to this case, it is held that in this instant case too, the evidence of the victim is found to be creditworthy. She is a minor who was only 7 years at the time of the incident. She could not comprehend the nature and gravity of the incident. Her evidence clearly reveals that she experienced pain at the time of the incident. The other witness to the incident himself was a minor boy who was only 9 years at the time of the incident. How children aged only 7 and 9 years could specifically describe an offence of penetrative sexual assault. Thus, the argument of the learned counsel for the appellant that the victim’s deposition is not consistent to her initial statement under Section 164 CrPC, holds no water. 46. The victim’s initial statement that the appellant has committed penetrative sexual assault has been affirmed by the IO. Thus, the argument of the learned counsel for the appellant that the victim’s deposition is not consistent to her initial statement under Section 164 CrPC, holds no water. 46. The victim’s initial statement that the appellant has committed penetrative sexual assault has been affirmed by the IO. As the victim has been assaulted by her father more than once, she was unable to recall the act and described a replicated account of the act. Being a minor aged only 7 years, she was unable to comprehend the ordeal. The incident was witnessed by the victim’s elder brother, who was also only 9 years old at the time of the incident. He has described the entire incident in the manner he could conceive and this is the reason why all the incidents have not been reflected in the FIR. 47. It is trite law that an FIR is not an encyclopedia. The FIR contains the factual matrix of the case in compendium to set the criminal investigation in motion. While framing charge, it was explained as:- “ That, you on 06.11.2018 at about 02:00 pm had sexually assaulted your stepdaughter aged about 7 years and you are therefore liable for offence under Section 376 AB IPC, read with Section 6 of the POCSO Act.” 48. Thus, it is apparent that the appellant was well aware that charges were framed under Section 376 AB of the IPC, read with Section 6 of the POCSO Act, which is inclusive of the offences described under Section 376 AB IPC, read with Section 5 of the POCSO Act. It has also surfaced through the evidence that the appellant committed penetrative sexual assault on his daughter and the appellant had a fair opportunity to defend himself and refute the charges and the evidence adduced against him. This Court cannot get swayed by minor intricacies and contradictions in the evidence. It is plain and simple that the appellant had committed penetrative sexual assault on his own daughter. 49. Section 464 of the CrPC reads:- 464. This Court cannot get swayed by minor intricacies and contradictions in the evidence. It is plain and simple that the appellant had committed penetrative sexual assault on his own daughter. 49. Section 464 of the CrPC reads:- 464. Effect of omission to frame, or absence of, or error in, charge.— (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision, is of opinion that a failure of justice has in fact been occasioned, it may,— (a) in the case of an omission to frame a charge, order that a charge be framed, and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. 50. In the wake of the foregoing discussions, it is held that no failure of justice has been occasioned as the appellant had a fair chance to rebut the evidence adduced against him. In fact, it can be safely held that there was no omission or irregularity in framing of charge as it has been clearly explained to the appellant that he had committed sexual assault which is defined under Section 5 of the POCSO Act and Section 376 AB of the IPC. 51. In the light of the decision of Hon’ble the Supreme Court in Ganesan’s case (supra), it is held that the victim has fully supported the case of the prosecution and narrated in detail, how the incident took place. She has been thoroughly and fully cross-examined. The victim is found to be absolutely trustworthy and unblemished and her evidence is of sterling quality. 52. She has been thoroughly and fully cross-examined. The victim is found to be absolutely trustworthy and unblemished and her evidence is of sterling quality. 52. The learned counsel for the appellant has relied on the decision of Hon’ble the Supreme Court in Narender Kumar -Vs- State (NCT of Delhi); reported in (2012) 7 SCC 171 , wherein it has been held and observed that- “ 29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. 30. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecution case becomes liable to be rejected.” 53. In this case at hand, it has already been held in the foregoing discussions that the victim is a sterling witness and the prosecution could establish its case beyond a reasonable doubt. The prosecution has not taken support from the weakness of the case of the defence. In this case at hand, it has already been held in the foregoing discussions that the victim is a sterling witness and the prosecution could establish its case beyond a reasonable doubt. The prosecution has not taken support from the weakness of the case of the defence. There is indeed proper legal evidence and material on record to record the conviction of the appellant. In this case, the conviction can be based on the sole testimony of the prosecutrix. 54. On the other hand, charges were framed under Section 6 of the POCSO Act as well as Section 376 AB of the IPC and thereafter, on the basis of the charges framed, trial commenced. Thus, the culpability as envisaged under Section 29/30 of the POCSO Act operates against the appellant. However, the learned trial Court chose to convict the appellant under Section 376 AB of the IPC. 55. Recapitulating the entire evidence, it is held that the discrepancies projected by the defence does not exonerate the appellant. It is true that the victim has mentioned in her statement under Section 164 CrPC, that on the relevant day, the appellant made her lie down on the bed and he inserted his private parts between her thighs. He touched her private part around three times and also made her touch his private parts. She also stated that on an earlier instance, he inserted his private part into her vagina. 56. We find the statement of the victim consistent to her evidence in Court as she has deposed as PW-2 that on the fateful day, the appellant removed his pants and lay atop her and he sexually assaulted her by inserting his private part into her vagina and she experienced pain. She further deposed that earlier, while they were residing downstairs in a building belonging to Matipi, her father had committed sexual assault on her by caressing his private parts in her presence. She has also deposed in her cross-examination that in the previous incident, the appellant did not insert his penis into her vagina. These statements of the victim cannot be considered to be vacillating statements. The victim was repeatedly assaulted by her father on several occasions and she could not recall in detail, in what manner she was assaulted by her father, but she has specifically described that the appellant had tried to insert his penis into her vagina. These statements of the victim cannot be considered to be vacillating statements. The victim was repeatedly assaulted by her father on several occasions and she could not recall in detail, in what manner she was assaulted by her father, but she has specifically described that the appellant had tried to insert his penis into her vagina. On an earlier occasion, the appellant had inserted his penis into her vagina. The sequel of events clearly depicts that the appellant had also committed penetrative sexual assault on the victim. The victim’s hymeneal tear was detected by the Medical Officer on examination of a 7 year old child and she has identified the predator in the Court. On the fateful day, after the sexual assault, both the victim and the appellant left for Berampuimmual. This has been admitted by the appellant. Thus, this is a case where we have circumstantial evidence as well as substantive evidence. The 7-years-old victim is found to be a sterling witness and her evidence is sufficient to prove beyond a reasonable doubt that on 06.11.2018, the appellant committed sexual assault on the victim and prior to 06.01.2018 the appellant committed penetrative sexual assault on the victim. The appellant does not deserve a benefit of doubt due to a minor difference in the statement of the victim under Section 164 CrPC and her evidence in the Court. It has surfaced from the evidence of the victim, supported and corroborated by the evidence of her brother and mother, PW-1 and PW-3, that the appellant had committed sexual assault on the victim as well as penetrative sexual assault on the victim-‘X’. 57. Section 3 of the POCSO Act stipulates that a person is said to commit penetrative sexual assault, if he penetrates his penis into any extent into the vagina of a child or makes the child to do with him or any other person or he inserts to any extent, any object or part of the body, not being penis into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person. 58. Section 375 of the IPC reads :- “375. Rape. 58. Section 375 of the IPC reads :- “375. Rape. – A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person, or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent.” 59. It was held by the learned trial Court that the victim was sexually assaulted by the appellant with his finger or penis. It has been held by the learned trial Court that Dr Josang Pui deposed in her evidence-in-chief that she found the hymen of the victim as- “not intact”, which depicts that there was penetration either by finger or by penis by none other than the accused/appellant. 60. It has been held by the learned trial Court that Dr Josang Pui deposed in her evidence-in-chief that she found the hymen of the victim as- “not intact”, which depicts that there was penetration either by finger or by penis by none other than the accused/appellant. 60. As the victim was only 7 years old, the learned trial Court convicted the appellant and sentenced him to Rigorous Imprisonment for 20 years, which is the minimum punishment under Section 376 AB of the IPC. Rape is described under Section 375 of IPC and Section 376 AB is punishment for an aggravated form of rape. It has surfaced through the evidence that the appellant committed rape on his 7 (Seven) year old daughter. It has surfaced through the evidence that the offence was a continuing offence. The victim was assaulted on several dates by her father. It has emerged through the evidence of the victim substantiated by the evidence of her brother and her mother as well as by the evidence of the Medical Officer and the IO that the appellant committed penetrative sexual assault as well as sexual assault on the victim. In other words, the appellant indeed committed rape on his minor daughter. This act of the appellant was continuing and the victim has categorically stated in her evidence and in her statement under Section 164 CrPC that the appellant committed penetrative sexual assault, which is also described under Section 5 of POCSO Act. Just because the 7 years old victim could not remember properly on which dates the appellant committed penetrative sexual assault and the dates when he committed sexual assault, the appellant cannot be exonerated. The presumption under Section 29/30 of the POCSO Act operates against him. It has to be borne in mind that the appellant was vigorously contesting this case and charges under Section 376 AB of IPC along with Section 6 of POCSO Act, were framed. The appellant was aware that he was charged with the offence of penetrative sexual assault and he had a fair opportunity to defend himself. It has also to be borne in mind that the appellant being the father of the victim is a formidable member of the family. The appellant’s misdeeds went unnoticed till the day when the victim’s brother witnessed the incident and informed his mother about the same. It has also to be borne in mind that the appellant being the father of the victim is a formidable member of the family. The appellant’s misdeeds went unnoticed till the day when the victim’s brother witnessed the incident and informed his mother about the same. Till then, the 7 years old daughter could not even comprehend the gravity of the act of the appellant. She was too young and the act of the appellant was unfathomable for her. Thus, the decision of the learned trial Court is found to be based on well spelt out reasons and we record our concurrence to the decision of the learned trial Court. 61. It has been held by the Hon’ble Supreme Court in Ganesh vs. State represented by its Inspector of Police reported in (2020) 10 SC 573 that : “10. 1. ……. 11. In State of Punjab v. Gurmit Singh, this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 39496 & 403, paras 8 & 21).” **** ***** ***** “21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 62. Reverting back to this case, it is held that except a trivial contradiction, the evidence of the victim was found to be consistent. The incident took place on several dates and the victim has categorically stated that the appellant continuously assaulted his own daughter. He committed sexual assault as well as penetrative sexual assault on his own daughter. The evidence of the minor victim is fortified by the evidence of the eye witness who happens to be her brother and he too is a minor. The evidence of the victim and the eye witness is corroborated and bolstered by the evidence of the informant and the evidence of the Medical Officer. Sound reasonings have been spelt out by the learned Trial Court while convicting the appellant. 63. In the wake of the foregoing discussions, this appeal is dismissed as this appeal is devoid of merits. 64. The judgment and order of the learned Trial Court dated 08.12.2021 in SC No. 32/2019 (Crl.Tr.No.334/2017) is hereby upheld. 65. In appreciation of the assistance provided by the learned Amicus Curiae, his/her fee is fixed at Rs. 9,500/- (Rupees Nine Thousand Five Hundred) only to be paid by the Mizoram State Legal Services Authority.