IMPORTANT POINT
The presumption of guilt under Section 29 of the POCSO Act is not absolute and requires the prosecution to establish foundational facts before the burden shifts to the accused to rebut the presumption.

JUDGMENT/ORDER

1. By this appeal, the appellant (the accused) challenges judgment and order of conviction and sentence dtd. 24/1/2022 passed by learned Additional Sessions Judge8, Nagpur in Special POCSO Case No.137/2019 whereby the appellant is convicted and sentenced, as follows:

For offence punishable under Sec. 376(2)(i)(n) of the Indian Penal Code, he was sentenced to suffer rigorous imprisonment for 10 years and to pay fine Rs.10, 000.00, in default, to suffer rigorous imprisonment for 3 months.

For offence punishable under Sec. 506 of the Indian Penal Code, he was sentenced to suffer simple imprisonment for 2 years and to pay fine Rs.2000.00, in default, to suffer simple imprisonment for 1 month.

For offence punishable under Sec. 509 of the Indian Penal Code, he was sentenced to suffer simple imprisonment for 3 years and to pay fine Rs.2000.00, in default, to suffer simple imprisonment for 1 month.

For offences punishable under Ss. 3 and 4 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act), he was sentenced to suffer rigorous imprisonment for 7 years and to pay fine Rs.3000.00, in default, to suffer rigorous imprisonment for 1 month.

For offence under Sec. 11(i)(iii) punishable under Sec. 12 of the POCSO Act, he was sentenced to suffer simple imprisonment for 3 years and to pay fine Rs.3000.00, in default, to suffer simple imprisonment for 1 month.

Learned Additional Sessions Judge (the trial court) directed that all the sentences of the accused shall run concurrently and set-off under Sec. 428 of the Code of Criminal Procedure was also given to him since he was in jail.

2. Brief facts necessary for disposal of the appeal are as under:

On 20/3/2019, mother (the informant) of the victim has lodged report against the accused on allegation that the victim, aged 10 years, is her younger daughter and studying in 6th Std.. On 19/3/2019, when she returned home at about 10:00 pm after attending work, her daughter disclosed her that the accused misbehaved with her and asked her to come along with him at his house, however she has not visited his house. At the relevant time, her neighbours Sujata and and Babita Kaku were also present. It is further alleged that the victim disclosed her that in the month of October, the accused called her at his house when she was alone and shown obscene pictures on his mobile phone. He also disrobed her and subjected her for sexual assault. The accused threatened her that if she disclosed the said incident to anybody, he will kill her mother and sister. In the month of February also, at about 1:30 pm, the accused has called her on the pretext of giving maggi at his home and when she denied the same, he threatened her that he will kill her mother and sister and, therefore, she went at his house. At the relevant time also, the accused sexually assaulted her by committing penetrative sexual assault. The informant after such disclosure, approached to the police station and lodged the report against the accused. On the basis of the said report, the investigating officer registered the crime vide Crime No.105/2019 and wheels of the investigation started rotating.

3. During investigation, the investigating officer visited the alleged spot of the incident and drawn spot panchanama in presence of panchas. He also drawn map of the spot of the incident. He issued letter to the Municipal Corporation and collected birth certificate of the victim. The victim was referred for her medical examination. The mobile phone of the accused was seized by drawing seizure panchanama. The samples of the victim and the accused were collected and forwarded to Forensic Science Laboratory. The investigating officer also recorded relevant statements of witnesses and after completion of the investigation, submitted chargesheet against the accused.

4. The trial court framed charge against the accused vide Exhibit-4. The accused pleaded not guilty and claimed to be tried.

5. To substantiate the charge, the prosecuti