The prosecution must establish foundational facts beyond reasonable doubt to trigger the presumption under the POCSO Act, and the accused can rebut the presumption through cross-examination and defence witness testimony.

JUDGMENT

N B Suryawanshi, J. - The appellant by this appeal challenges his conviction under Sections 10 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and under Section 354-A (2) of the Indian Penal Code and the sentence of rigorous imprisonment for 5 years and 6 months and total fine of Rs.6,000/- was imposed on him with default clause by the learned Additional Sessions Judge, Amravati in Sessions Trial No.295/2016.

2. The prosecution case, in short, is that the appellant-accused, at the relevant time, was a teacher and was taking tuition of primary students at his house. On 4.10.2016 at about 6.00 pm, the victim and her five batch-mates attended the tuition at the house of the accused. A test of all the students was conducted by the accused. After assessment of the paper, the accused took the victim, aged about 10 years, in the inside room under the pretext that he would show her mistakes. In the room, after lifting the T-Shirt of the victim, the accused sucked the breast of the victim. The victim went to her house weeping and narrated the incident to her parents. Her father took her to the Police Station and lodged a report. On the basis of a report, Crime No.215/2016 for offences under Section 354- A of the Indian Penal Code and under Sections 8, 10 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 (for short, the Act of 2012) was registered at Mangrul Dastagir Police Station. Investigation was conducted, spot panchanama was prepared and accused was arrested on 5.10.2016. Thereafter, the statements of the witnesses were recorded. The statements of the victim and some of her tuition-mates were recorded under Section 164 of Cr.P.C. After completion of investigation, charge-sheet was filed against the accused.

3. Charge under Section 354-A (1)(i)(ii) of the Indian Penal Code and under Sections 10 and 12 of the Act of 2012 was framed against the accused. The accused denied the charge, his defence was of total denial. He claimed that he was falsely implicated. The learned Trial Court, after recording the evidence, convicted the accused. Hence, the present appeal.

4. Heard the learned advocate for the appellant and the learned APP for the respondent-State.

5. The learned advocate for the appellant submitted that the prosecution evidence does not inspire confidence. There was delay in recording the statements of the witnesses. The incident has taken place on 4.10.2016 and the statements of the witnesses under Section 161, Cr.P.C. were recorded belatedly, so also the statements under Section 164, Cr.P.C. Though the victim alleges that she lodged oral report, in fact, the typed complaint was lodged. He pointed out that the statements of father and mother of the victim were recorded on 5.10.2016, whereas the statements of the victim and her tuition-mates were recorded on 10.11.2016. In their statements, there is no reference that the wife and the daughter of the appellant were not present on the day of incident. For the first time on 14.11.2016, this was stated by victim in her statement under Section 164, Cr.P.C. According to him, the evidence of the victim and PW-2 does not inspire confidence. He further submitted that the appellant has examined DW-1, the tuition-mate of the victim and has proved his defence. According to him, PW-2 is a tutored witness. By pointing out the admission to the effect that on the day of incident, there was mahaprasad in the temple situated in front of the house of appellant and the villagers were sitting on the road for having mahaprasad. He submitted that not a single independent witness was examined by the prosecution in support of its case. According to him, the appellant has successfully discharged his burden under Section 29 of the Act of 2012, during the cross-examination of the prosecution witnesses and by examining the defence witness. He therefore submitted that the prosecution has failed to prove the offence against the appellant beyond reason