Rajkishor Mali Vs The State of Ap and Anr.

2:Pravrajikaprana Vedatmaprana Age: 0 Occupation : Daughter of Late B R Nayak resident of B R Nayak resident of Rama Krishna Sarada Mission Girls School Khonsa PO and PS Khonsa Tirap District Arunachal Pradesh 22160

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Advocate for the Petitioner : Hage Tai, Himanku Baruah,Deepak Kumar Gupta

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Advocate for the Respondent : P P of AP, Legal Aid Counsel,Oyina Perme

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BEFORE

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HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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JUDGMENT & ORDER (ORAL)

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03.06.2025

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Heard Mr. D. K. Gupta, learned counsel for the appellant. Also heard Ms. T. Jini, learned Additional Public Prosecutor, appearing for the respondent No. 1 and Ms. O. Perme, learned Legal Aid Counsel, representing the respondent No. 2/informant.

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2. The present appeal has been instituted by the appellant, assailing the judgment and order, dated 01.08.2024, passed by the learned Special Judge (POCSO), Khonsa Sessions Division, Tirap District in Khonsa/SC (POCSO) Case

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No. 06/2023, convicting the appellant under Section 354A IPC and Section 10 of The Protection of Children from Sexual Offences Act, 2012 (in short, The POCSO Act) and sentencing him to 5 (five) years imprisonment, under Section 10 of The POCSO Act with a fine of Rs. 10,000/- (Rupees Ten Thousand) in default, to suffer further detention for a period of 6 (six) months.

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3. Facts of the case in brief requisite for the purpose of adjudication of the present appeal is noticed as under.

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(i). On 03.09.2023, the Principal of Ramakrishna Sardar Mission School, Khonsa, Pravrajika Vedatmaprana lodged an FIR to the effect that on the previous day, a student of the school, aged about 15 (fifteen) years, studying in Class-IX, was molested one by one of the employees of the school, working as a Peon, namely Shri Rajkishore Mali, by touching her private parts.

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(ii). On receipt of the said FIR, the Police of Khonsa Police Station registered the same as Khonsa P.S. Case No. 16/2023, under Sections 354 IPC, read with Section 10 of The POCSO Act. The Investigating Officer had arrested the appellant on 03.09.2023. Thereafter, the statement of the victim girl was recorded by the learned Judicial Magistrate First Class, Khonsa, on 22.09.2023, under Section 164 Cr.P.C. On culmination of the investigation, the Investigating Officer having found a prima facie case established under Section 354 IPC, read with Section 10 of The POCSO Act, proceeded to file a Charge-sheet in the matter against the appellant, herein.

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(iii). The learned Trial Court, upon hearing the prosecution as well as the appellant, proceeded to frame charges under Section 354 IPC and Section 10 of The POCSO Act against the appellant. The appellant having not pleaded guilty against the charges so framed against him, the learned Trial Court proceeded to

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try the appellant basing on the charges levelled against him.

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(iv). During the trial, the prosecution had examined 8 (eight) witnesses including the informant, victim and the Investigating Officer. No defence witnesses were examined by the appellant herein. On conclusion of the trial, the learned Trial Court convicted the appellant herein under Section 354A IPC and Section 10 of The POCSO Act.

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(v). Reckoning the provisions of Section 42 of The POCSO Act, the punishment provided under the provisions of Section 10 of The POCSO Act being greater in degree, the learned Trial Court proceeded to sentence the appellant herein under the provisions of Section 10 of The POCSO Act to suffer simple imprisonment for a period of 5 (five) years with a fine of Rs. 10,000 (Rupees Ten Thousand). In default, it was provided that he shall suffer further imprisonment for a period of 6 (six) months. The period of detention undergone by the appellant herein was directed to be set off from the total period he was so sentenced.

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4. The learned counsel for the appellant, assailing the conviction and sentencing of the appellant herein, has submitted that the learned Trial Court, while proceeding to hold the appellant guilty of the charge levelled against him under Section 10 of The POCSO Act, had failed to get the age of the victim determined in the manner as contemplated under the provisions of Section 34 of The POCSO Act as well as under the provisions of Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short, The JJ Act). The learned counsel for the appellant has submitted that the Birth Certificate from the school as produced by the PW-1 during her deposition was a document which was so prepared after 9 (nine) months from the date of lodging of the FIR. It is submitted by the learned counsel for the appellant that the

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prosecution had failed to bring on record in the Charge-sheet any material to establish the Date of Birth of the victim in accordance with the provisions of law holding the field. Accordingly, it is submitted by the learned counsel for the appellant that a doubt having arisen with regard to the Date of Birth of the victim, and the prosecution having failed to establish such Date of Birth of the victim beyond a reasonable doubt, the charge levelled against the appellant under the provisions of The POCSO Act, would not stand attracted against the appellant herein and he would be required to be acquitted from the charges so levelled against him.

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5. In support of his submission, the learned counsel for the appellant has placed reliance on the decision of the Hon’ble Supreme Court in the case of P. Yuvaprakash v. State Rep. by Inspector of Police , reported in AIR 2023 SC 3525 .

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6. The learned counsel for the appellant has further submitted that considering the statement of the victim recorded by the concerned Judicial Magistrate under the provisions of Section 164 Cr.P.C. and her deposition in the trial of the case, there admittedly being variation in such deposition made by the victim, in absence of any eyewitness, the reliance placed by the learned Trial Court on the deposition of the victim before it for the purpose of convicting the appellant herein was clearly erroneous. He submits that the divergence in the statements of the victim before the Judicial Magistrate, under the provisions of Section 164 Cr.P.C. and that made by her during the trial, has demonstrated that the allegations levelled against the appellant herein were clearly so made with an ulterior motive and accordingly, the appellant herein is required to be granted the benefit of the same and he is called upon to be acquitted from the charges levelled against him in the matter.

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7. The learned counsel for the appellant has further submitted that given the variation in the statements of the victim before the Trial Court and in her statement recorded under the provisions of Section 164 Cr.P.C., the prosecution had failed to establish the foundational facts requisite to be so established by it before a presumption of guilt of the appellant could be drawn by the Trial Court. It is submitted that the failure on the part of the prosecution to establish the foundational facts, the presumption existing under Section 29 of The POCSO Act, cannot be invoked against the appellant herein and accordingly, he is entitled to be acquitted from the charge levelled against him in the criminal proceedings so instituted.

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8. In the above premises, the learned counsel for the appellant submits that the judgment and order, dated 01.08.2024, passed by the learned Special Judge (POCSO), Khonsa Sessions Division, Tirap District in Khonsa/SC (POCSO) Case No. 06/2023, would mandate an interference from this Court.

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9. Per contra, Ms. T. Jini, learned Additional Public Prosecutor for the State, at the outset, submitted that the plea now raised by the learned counsel for the appellant in the present appeal that the age of the victim was not determined in the manner contemplated under the provisions of Section 94 of The JJ Act is clearly perverse. With regard to the appellant’s submission that the prosecution had not brought on record any evidence to prove the age of the victim girl, Ms. Jini submits that the Special Public Prosecutor had, in fact, submitted an application before the Trial Court for directing the PW-1/informant to produce relevant age proof documents of the victim girl available in the school for the purpose of determining the age of the victim girl. The PW-1 i.e., the informant herein, had on her re-examination, produced the birth certificate from the school certifying the age of the victim. The said certificate was marked as

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Exhibit No. 5 and therein, the date of birth of the victim was stated to be 16.08.2009. The PW-1 had substantiated the said Date of Birth recorded in the certificate that is Exhibit-5 by way of production of the original School Admission Register, which was marked as Exhibit-7 by the Trial Court. It is submitted that the documents produced by the prosecution in the trial for the purpose of determination of the age of the victim, was in compliance with the provisions of Section 94 of The JJ Act, which mandates determination of such age on the basis of school certificate or matriculation or equivalent certificate. The school certificate having been proved in the trial by the prosecution and further substantiated by production of the original school records, the conclusion drawn by the learned Trial Court with regard to the Date of Birth of the victim would not mandate any interference.

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10. Ms. Jini, the learned Additional Public Prosecutor further submitted that the appellant had never made any objection with regard to the exhibition of documents during the trial by the prosecution for the purpose of determination of the age of the victim. Further, the appellant had also not contradicted such determination of age by bringing on record any contrary material either before the learned Trial Court or in the present proceedings before this Court.

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11. With regard to the contention of the appellant that the deposition of the victim could not have been given credence for the purpose of arriving at a conclusion with regard to the guilt of the appellant herein by the Trial Court, Ms. Jini has submitted that in the statement made by the victim in her deposition under Section 164 Cr.P.C. as well as in her deposition in the trial, the only discrepancy that was existing is with regard to the fact that while in her deposition under Section 164 Cr.P.C, the victim had deposed that the appellant while hugging her has squeezed her breast as well as her buttocks, however,

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while deposing in the trial, she had said that the appellant had only squeezed her buttocks. Ms. Jini submits that the said discrepancy being just a mere omission, cannot be construed to be a contradiction which would create a doubt with regard to the truthfulness and credibility of the witness. She submits that the learned Trial Court had examined the said aspect of the matter and had come to a conclusion that the said discrepancy would not be relevant for discarding the evidence adduced by the victim before it. Ms. Jini has further submitted that the statements made by the victim both in her deposition under Section 164 Cr.P.C. and her deposition in the trial being consistent and the same also being corroborated with the statements of the other witnesses, the conviction of the appellant herein by the learned Trial Court under the provisions of Section 10 of The POCSO Act and Section 354A of the IPC, cannot be said to be erroneous.

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12. With regard to the statements adduced by PW-1 and PW-4, i.e., the informant and the friend, Ms. Jini has submitted that the same cannot be discarded by holding the same to be hearsay evidence. She submits that the material brought on record would go to reveal that the victim after the incident had immediately approached the PW-4 and PW-1, and accordingly, the learned Trial Court had rightly taken into consideration the exception to the hearsay witnesses provided under Section 6 of the Evidence Act and held that the evidences of PW-1 and PW-4 to be admissible. She further submits that the appellant herein had failed to dislodge the deposition made by the PW-1 and PW-4 during the trial. Ms. Jini has further submitted that it is a settled position of law that defects during the investigation cannot form the basis of an acquittal. Accordingly, she submits that the foundational facts requisite for establishing the allegation levelled against the appellant herein, having been

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established by the prosecution during the trial, the presumption formed by the Trial Court against the appellant under the provisions of Section 29 of The POCSO Act, cannot be said to be erroneous, more so, when such presumption was not rebutted by the appellant herein by adducing due evidence.

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13. Ms. O. Perme, learned Legal Aid Counsel appearing for the respondent No. 2/informant has adopted the arguments advanced by Ms. T. Jini, the learned Additional Public Prosecutor for the State.

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14. I have heard the learned counsels for the parties and also perused the materials available on record.

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15. In order to appreciate the evidences and the submissions made by the learned counsels for the parties, this Court deems it fit to notice the evidences adduced by the witnesses before the learned Trial Court.

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16. Pravrajika Vedatmaprana, who had deposed during the trial as PW-1, had deposed that she had got information from the Hostel Warden, Pravrajika Bodharupaprana that the victim girl was bitterly crying in the hostel and she was asked to enquire about the matter from her. She further deposed that the victim girl along with her friends had, thereafter, come to her office and told her that when she was studying in the classroom, the appellant herein had asked her to collect gooseberries from the Peon's office. It is further deposed that the victim girl had stated before her that when she had proceeded to the Peon's room, the appellant who was available therein, touched her body and hugged her tightly. The victim girl had further deposed that she managed to free herself from the appellant and had come out of that room. She further deposed that she had called the appellant to his office to enquire about the matter. However, the appellant had denied committing the said offence. The PW-1, thereafter,

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discussed the matter with her colleagues and informed the same to the parents of the victim and eventually, filed the FIR.

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During cross, the PW-1 had stated that she did not see the appellant committing sexual assault upon the victim girl and that at the time of the offence, the victim girl was alone.

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The PW-1, thereafter, on being so required by the Trial Court, had produced documents showing the Date of Birth of the victim girl of the case. She further had deposed on her re-examination that as per records available in the school, the victim was born on 16.08.2009 and had got admitted in Class-I of the school on 27.05.2015. A certificate dated 11.06.2024 to that effect was produced by the PW-1, which was marked as Exhibit-5. The said certificate was proved by the PW-1, basing on the abstract copy of the School Admission Register showing the name of the victim girl, which was exhibited as Exhibit-7. Further, the PW-1 had produced an Online Registration Form of Class-IX of the victim girl, which was also exhibited as Exhibit-6. During her cross, the PW-1 had stated that the Date of Birth of the victim was recorded on the basis of the Birth Certificate produced by the parents during her admission to Class-I.

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17. Pravrajika Bodharupaprana, who is the Hostel Warden, had deposed as PW-2 and had stated that she had found the victim girl crying in the hostel. However, on enquiry, the victim girl had not disclosed anything to her but her friends had told her that the appellant herein, who was working as a Peon in the school had touched her body. She deposed that she had, accordingly, informed the matter to the Principal of the school.

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18. The victim girl had deposed as PW-3. In her deposition, the PW-3, i.e., the victim had deposed that the appellant, who was passing through her classroom

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had asked her if she wanted to have guava. Accordingly, he called her to come down with him. When she had reached him, he was in his room and he had asked her to come inside the room. The victim deposed that as she entered into the room, the appellant had given her some guavas and thereafter, caught hold of her hands. The victim further deposed that the appellant had hugged her tightly and also squeezed her buttocks. However, she managed to free herself from his clutch and run away from his room towards her hostel. On reaching her hostel, she submitted that she had disclosed about the incident to her friends. She also deposed that she had informed about the incident to her Hostel Warden. The victim had proved the statement recorded by the Magistrate under Section 164 Cr.P.C. and her signatures taken, therein. The statement of the victim under Section 164 of the Cr.P.C., was exhibited as Exhibit-2.

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19. The friend of the victim, to whom she had disclosed about the incident had deposed during the trial as PW-4. She, after disclosing the incident as reported to her by the victim, had deposed that in the year 2023, when she was studying in Class-IX, the appellant herein had once caught her hand on the pretext of giving her gooseberries. The PW-4 had further exhibited her statement recorded by the Magistrate under Section 164 Cr.P.C., which was exhibited at Exhibit-3.

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20. The parents of the victim were examined as PW-6 and PW-7 and they had deposed that the incident was informed to them by the Mataji of the school. They had further deposed that their daughter had also informed them about the incident.

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21. The Investigating Officer of the case was examined by the prosecution as PW-8. The Investigating Officer had deposed that on 02.09.2023, they had received a telephonic information that a student of the Sarada Mission School was molested by a school staff. Accordingly, they had proceeded to the school

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and met the victim in the chamber of the Principal. The victim had disclosed to her that she was molested by the appellant herein, after the lunch break. The appellant was deposed to have been taken into custody. The FIR was received from the Principal on 03.09.2023 against the appellant herein. The Investigating Officer further deposed that the appellant on interrogation admitted to have committed the alleged offence. The recording of the statements of the victim under Section 164 Cr.P.C. before the learned JMFC Khonsa, was also brought on record. During her cross, the Investigating Officer had submitted that she had not collected any age proof documents of the victim girl.

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22. On closure of the evidence of the prosecution, the learned Trial Court had examined the appellant herein under Section 313 Cr.P.C. The appellant had denied committing the offence alleged against him. What is to be noted is that the appellant during his deposition under Section 313 of the Cr.P.C. had stated that he does not have any defence evidence to adduce in the case.

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23. The contentions raised by the learned counsel for the appellant that the age of the victim not being established during the investigation by the Police, the determination of such age by the Trial Court in addition to being not permissible, was in violation of the mandate of Section 94 of The JJ Act. It is an admitted position that in the Charge-sheet, no materials were adduced by the Investigating Agency towards establishing the age of the victim at the time of commission of the offence on her and basing on the statements made by her before the Magistrate and the age declared by the victim in her deposition under Section 164 Cr.P.C. before the Magistrate, it was construed that the appellant was aged 15 (fifteen) years at the time commission of the offence on her. The prosecution had moved an application before the learned Trial Court for directing the PW-1 to produce the relevant age proof documents of the victim

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available in the school. Such application was not objected to by the appellant herein, and accordingly, basing on the directions issued by the learned Trial Court, while allowing the application filed by the prosecution, the PW-1 again appeared before the Court on 11.06.2024 and produced a certificate issued by her showing the Date of Birth of the victim as 16.08.2009. Along with the said certificate, the online registration form of the victim girl for Class-IX and the original School Admission Register, showing the date of admission of the victim girl in the same school in Class-I on 27.05.2015, which had also contained an entry with regard to the Date of Birth of the appellant as 16.08.2009 was brought on record. The certificate issued by the PW-1 was exhibited by her as Exhibit-5, while the online registration form of the victim girl for Class-IX was exhibited as Exhibit-6. The abstract copy of the School Admission Register was exhibited as Exhibit-7.

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24. What is material to be noted is that during cross-examination of PW-1 by the appellant, she had stated that the Date of Birth of the victim girl was entered in the Admission Register on the basis of the Birth Certificate produced by her parents during admission into Class-I.

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25. The learned counsel for the appellant had placed a reliance on the decision of the Hon’ble Supreme Court in the case of P. Yuvaprakash (supra) . Section 34 of The POCSO Act mandates that if any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. Section 94 of The JJ Act, mandates that the age of the person shall be so determined amongst others basing on the Date of Birth certificate from the school, or the matriculation or the equivalent certificate from the concerned examination board

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if available. The Hon’ble Supreme Court after noticing the provisions of Section 34 of The POCSO Act and Section 94 of The JJ Act, had noted the following conclusion:

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“...13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof,

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

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Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or

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"any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the

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records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.”

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26. In the case on hand, the certificate of the school authority having been exhibited as Exhibit-5, the procedure as mandated under Section 94 of The JJ Act has been complied with. Further, the age as disclosed in the Exhibit-5 certificate was so established by production of the School Admission Register, wherein, the Date of Birth was so recorded by the school authorities at the time of admission of the victim girl into Class-I of the school, which corresponds to the Date of Birth of the victim girl recorded in the Exhibit-5 certificate. PW-1 during her cross-examination by the appellant had categorically deposed that the Date of Birth of the victim was recorded at the time of her admission in the school basing on her birth certificate produced by her parents.

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27. The learned Trial Court on examination of the contentions raised by the appellant in the matter had drawn the following conclusions.

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“30. As the Principal (PW-1) of the Ramakrishna Sarada Mission School who issued a certificate (Ext. No.5) showing date of the victim girl as 16.08.2009 has proved the same in the court and further substantiated the same by producing original school admission register showing admission of the victim in Class-I on 27-05-2015, I find no reason to doubt the date of birth mentioned in the exhibit No. 5 and 7. Also on careful perusal of the original admission register, abstract copy of which is exhibited as Ext. No. 7, I find name of the victim girl at serial No. 2136 with a date of birth as 16.08.2009. Therefore, reckoning age of the victim girl from her date of birth, I find that she on the date of offence i.e 02.09.2023 was fourteen years and seventeen days.”

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28. A perusal of the conclusions drawn by the learned Trial Court in this connection with regard to the Date of Birth of the victim and her age on the date of commission of the offense, this Court is of the considered view that the

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same has been so done strictly in accordance with the provisions of Section 34 of The POCSO Act, read with Section 94 of The JJ Act. Accordingly, following the decision of the Hon’ble Supreme Court in the case of P. Yuvaprakash (supra) , this Court is of the view that the conclusion drawn with regard to the Date of Birth of the victim girl by the Trial Court would not call for any interference. The victim girl has to be deemed to be a minor on the date of commission of the offense i.e., on 02.09.2023. Having noticed the above position, this Court would now examine as to whether the foundational facts requisite for bringing home against the appellant the charges levelled against him have been established by the prosecution.

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29. As been noticed hereinabove, a perusal of the deposition of the victim as PW-3, brings on record the fact that the appellant herein had hugged her tightly and also squeezed her buttocks. The said statement of the victim was corroborated by the statement of her friend to whom she had disclosed about the offence immediately after commission of the same, i.e. the PW-4, who had corroborated the statements made by the victim girl. Further, the evidence of PW-1 to whom also the incident was reported immediately after the occasion of the same, goes to reveal that the prosecution had brought on record materials, evidences to establish the commission of the offence by the appellant, herein. The appellant, although had cross-examined the victim girl, PW-3, PW-4 and PW-1, had failed to dislodge the statements made by them in the matter.

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30. Having noticed the said position, the contention of the learned counsel for the appellant that there is a variation in the depositions of the victim girl recorded before the Judicial Magistrate, under Section 164 Cr.P.C and that so recorded during the course of the trial and there being material variation in her said depositions, the credibility of the deposition of the victim girl is

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questionable and accordingly, the benefit of doubt in this connection has to be granted to the appellant, is being examined. The said issue was examined by the learned Trial Court and the learned Trial Court had drawn the following conclusion:

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“...31. The victim girl (PW-3), in her testimonies recorded by this Court as well by the court of learned Judicial Magistrate under section 164 Cr.Pc clearly stated that the accused on 02.09.2023, while giving guavas had hugged her tightly and also squeezed her buttock. Although, she in her depositions recorded under section 164 Cr.Pc stated that the accused had pressed her breast also, same is found missing in her dispositions recorded by this Court.

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The Hon'ble Supreme Court in Vahitha vs State of Tamil Nadu MANU/SC/0155/2023 held as:

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12.2. As regards inconsistencies and/or discrepancies in the version of the witnesses, in the case of Shyamal Ghosh (supra) this Court has explained the distinction between serious contradictions and omissions which materially affect the prosecution case and marginal variations in the statement of witnesses in the following terms:

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From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely

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affect the case of the prosecution.

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In view of the above cited authority, I find mere omission on the part of the victim to mention pressing of her breast by the accused in court's deposition not material to doubt veracity of her evidence. Apart from the mere omission as has been seen, I find consistency in the depositions of the victim girl recorded by both the courts.

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As law is well settled that the depositions recorded under section 164 (5) Cr.Pc if not corroborated by the witness in his/her testimony recorded by the trial court, same shall not be relied upon inasmuch as such evidence not being a substantive evidence can be used only for contradiction and corroboration. Therefore, in absence of deposition with regard to pressing of breast by the accused, I find difficulty to rely on uncorroborated statement of the victim recorded under section 164 (5) Cr.Pc to hold that the accused pressed breast of the victim girl. However, I find her depositions with regard to hugging and squeezing of her buttock by the accused consistent. Albeit, the victim was subjected to crossexamination, her evidence remains free from dent. Accordingly, I find no reason to doubt credibility of her testimony.

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It is evident from the PW-4 that she found the victim girl crying in dormitory and heard from the victim girl that she was tightly hugged by the accused. As this evidence of the PW-4 is not dislodged in her crossexamination, I find the same reliable and corroborating with evidence of the victim girl who stated to have informed the incident to PW-4 just after the incident.

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Further, it is also seen from the evidence of the complainant (PW-1) that the victim girl, just after the incident visited her chamber and narrated to her that she was hugged tightly by the accused. As this evidence of the PW-1 is not dislodged in her cross-examination, I find no reason to doubt the same.”

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31. Having perused the said conclusion of the learned Trial Court, this Court is of the view that the contention raised by the learned counsel for the appellant that the variation in the depositions of the victim girl in her statement under 164 Cr.P.C. as well as in the deposition before the Trial Court, proceeds to create a doubt about the truthfulness and credibility of the witnesses would not mandate an acceptance from this Court. It is to be noted that the victim (PW-3)

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was all along consistent in her disposition. Accordingly, it has to be held that the prosecution was successful in establishing the foundational facts to bring home the charge levelled against the appellant in the matter.

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32. Having noticed the above position and also having concluded that the prosecution was successful in establishing the requisite foundational facts against the appellant herein, it is to be noted that The POCSO Act empowers the Special Judge to have a presumption about the guilt of an accused, the doctrine of reverse burden being applicable in such cases.

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33. At this stage, it is relevant to note the provisions of Sections 29 and 30 of The POCSO Act, which is as under:

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“29. Presumption as to certain offences.-Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

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Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

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(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.”

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34. The perusal of the provisions of Sections 29 & 30 of The POCSO Act, would go to reveal that the same raises a presumption with regard to the culpable mental state of the accused and also places the burden in this behalf on the accused. However, it is to be noted that such presumption would operate in the

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trial of the accused only in the event the circumstances requisite to be satisfied for the same, are so satisfied. An initial burden exists upon the prosecution and only when the same stands satisfied, the legal burden would shift. The standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas, the standard of proof required to prove the guilt of the accused on the prosecution is ‘beyond all reasonable doubt’, but it is preponderance of probability on the accused. In other words, the insertion of Sections 29 & 30(2) of the POCSO Act does not altogether relieve the prosecution of the burden of proof contemplated under Sections 101 & 102 of the Evidence Act, but it merely lessens the burden of the prosecution by shifting the onus upon the accused. Accordingly, it is clear that the conviction of an accused under The POCSO Act cannot be merely based on the presumption of guilt of the accused under Sections 29 & 30 of The POCSO Act.

¶111

35. The Coordinate Bench of this Court in the case Bhupen Kalita v. State of Assam , reported in 2020 (5) GLR 153 enunciated the legal position in the matter with regard to a proceeding under The POCSO Act as follows:

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“...71. In the light of the discussions above, the following legal positions emerge in any proceeding under the POCSO Act.

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(A) The prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability.

¶114

(B) Accordingly, if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused.

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(C) If the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused, the accused can rebut the same either by discrediting the prosecution witnesses through crossexamination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However, if it relates to absence of culpable mental state, the accused has to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act.

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(D) However, because of legal presumption against the accused, it may not suffice by merely trying to discredit the evidence of the prosecution through cross-examination, and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt.”

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36. Applying the above decision of the Coordinate Bench of this Court to the facts of the present case, it is clear that in the present matter the prosecution had established the foundational facts beyond a reasonable doubt. The said foundational facts having been established, it was requisite upon the appellant herein to adduce evidence to rebut the same. The appellant herein, as noticed hereinabove, had failed to discharge his statutory burden. Accordingly, it is to be held that the learned Trial Court rightly held that the charge brought against the appellant has been proved beyond all reasonable doubt. This Court, on consideration of the materials brought on record, is of the considered view that the learned Trial Court had correctly appreciated the evidences in the light of the statutory provisions applicable. Accordingly, this Court does not find any ground for interference with the impugned judgment and order.

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37. Resultantly, the impugned judgment and order, dated 01.08.2024, passed by the learned Special Judge (POCSO), Khonsa Sessions Division, Tirap District

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in Khonsa/SC (POCSO) Case No. 06/2023, is upheld and this appeal is dismissed as devoid of merit.

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38. Trial Court records be remitted to the concerned Court.

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JUDGE

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Comparing Assistant

Rajkishor Mali v. The State of Ap and Anr.

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Rajkishor Mali v. The State of Ap and Anr.

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