IMPORTANT POINT
The presumption under Sec. 29 of the POCSO Act is not absolute and requires the prosecution to first establish foundational facts beyond reasonable doubt for it to operate against the accused.

JUDGMENT/ORDER

1. By this appeal the appellant impugns judgment and order dtd. 29/08/2018, passed by the learned Judge, Special Court and Additional Sessions Judge, Jalna, in Special Case (Child) No.24/2017, thereby convicting and sentencing appellant as under:-

I) For offence punishable under Sec. 377 of the Indian Penal Code to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000.00;

II) For offence punishable under Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act") to undergo rigorous imprisonment for 10 years and to pay fine of Rs.5,000.00;

2. The prosecution case, in short, is that victim is six years old son of informant (PW1). On 23/02/2017 there was procession at the village to celebrate electoral victory of informant's nephew in Panchayat Samiti election. In the evening, PW1 was standing near the village entrance gate (osl). At that time, victim (PW2) came towards him crying and informed him that accused Balu committed unnatural sex with him by inserting penis in his anus. PW1 took victim to their house, where the victim narrated the incident to his mother (PW8). PW8 removed pant of the victim and found that there was slight bleeding and swelling to victim's anus. PW1 and other family members searched for the accused. He was found in the crowd of procession. He was brought to the house of informant and victim identified him as accused. PW1 then lodged report (Exhibit-33) with police on 23/02/2017, which was registered at Crime No.24/2017, for offence punishable under Sec. 377 of IPC and Ss. 3 and 4 of the POCSO Act. After completion of investigation charge-sheet was filed. Appellant was charged under Sec. 377 of IPC and Sec. 6 of the POCSO Act. The appellant pleaded not guilty.

3. Prosecution in support of it's case examined 11 witnesses. The defence of the appellant was of false implication due to rivalry over political factionalism, following the Panchayat Samiti election. After appreciation of evidence, Special Court convicted appellant as aforestated. Hence the appeal.

4. Heard learned advocate for appellant, learned Additional Public Prosecutor for respondent - State and learned advocate appointed for informant. Perused the record.

5. Learned advocate for appellant assailed the conviction contending that evidence brought on record by the prosecution is not sufficient to convict the appellant. According to her, there is material variance in the prosecution evidence, benefit of which needs to be given to the appellant. She submits that prosecution has failed to prove the charge beyond reasonable doubt.

6. Learned Additional Public Prosecutor and learned advocate for the informant, on the other hand, by relying on the prosecution evidence submit that trial Court has properly appreciated the evidence and has rightly convicted the accused. Further submission is that in view of evidence of prosecution witnesses, medical evidence and presumption under Sec. 29 of the POCSO Act, conviction of accused/appellant is proper and no case is made out to interfere in the same.

7. PW1 father of the victim has deposed that victim was six years old and the incident happened prior to one year, at about 06:00 p.m. He was near the gate (osl) of their village. On that day, his nephew had succeeded in Panchayat Samiti election and there was procession. Victim came towards him crying and told him that accused Balu removed his pant and committed unnatural sex with him. Therefore, he took victim to the house. Victim narrated the incident to his mother. Victim's mother checked by removing his pant. Slight bleeding and swelling was noticed at the anus of the victim. Then he went to the house of accused, but he was not found there. Accused was found in the village procession and he was caught and brought to their house, where the victim identified accused as the same person who did unnatural sex with him. On the same day they lodged report (Exhibit-33). In cross-examination PW1 admitted t