IMPORTANT POINT
The presumption under Section 29 of the POCSO Act requires the prosecution to first prove foundational facts beyond a reasonable doubt for it to operate against the accused.

JUDGMENT :

1. In this appeal, challenge is to the judgment and order dated 22.01.2021, passed by the learned Additional Sessions Judge-1, Achalpur, whereby the learned Additional Sessions Judge held the appellant/accused guilty of the offence punishable under Section 376AB of the Indian Penal Code (for short, “the I.P.C.”) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”) and sentenced him to suffer rigorous imprisonment for twenty years and to pay a fine of Rs.20,000/-, in default of payment of the fine to suffer rigorous imprisonment for six months.

2. Background facts:-

PW-1 is the mother of victim-informant. The report of the crime was lodged on 08.03.2019. It is stated in the report by the informant that the victim, on the date of the commission of the crime was 8 years old. She was studying in the 3rd standard. On 08.03.2019 at about 9.00 a.m. she went to play near the Samaj Mandir of the village. She did not come back and therefore, at about 10.00 a.m. the informant went there and brought her back. The informant gave her a bath and sent her to school. The victim returned from the school at 5.30 p.m. The informant noticed that she was dull and uncomfortable. On the next day, when the informant asked the victim to get ready for school, she was reluctant and started weeping. On inquiry by the informant, she told the informant that she had pain in her private part. On further inquiry, the victim told the informant that yesterday while she was playing at Samaj Mandir, the accused offered her sweet (Tilacha Ladu) and took her inside the Samaj Mandir. The accused removed her knickers and removed his pant as well. It is stated that she told her that the accused forcibly touched his penis to her private part and therefore, she had server pain. The father of victim was not at home on that day. He returned from work at 3.00 p.m. The informant narrated the incident to father of the victim. The informant and the victim went to Asegaon Police Station and lodged the report. On her report, the crime bearing No.56/2019 was registered against the accused.

3. PW-8 conducted the investigation. The victim was referred to the Primary Health Centre, Asegaon for medical examination. She was referred to the District Women Hospital at Amravati. She was examined. The investigating officer drew the spot panchanama. The clothes of the victim and the accused were seized. Investigating officer collected documentary evidence relating to the birth date of the victim. After completion of the investigation, the investigating officer filed the charge-sheet against the accused.

4. Learned Judge framed the charge against the accused. The accused abjured his guilt and claimed to be tried. It is his defence that there was a quarrel between him and father of the victim because the father of the victim had cut the grass from his land, which is adjacent to the village. The accused had slapped the father of the victim and therefore, to take revenge the false report was lodged. The prosecution, in order to prove the charge against the accused, examined eight witnesses.

Learned Additional Sessions Judge, Achalpur, on consideration of the evidence, held the accused guilty of the charge and sentenced him as above. Being aggrieved by this judgment and order, the appellant has come before this Court in appeal.

5. I have heard learned Advocates for the appellant and learned APP for the State. Perused the record and proceedings.

6. Learned Advocate for the appellant submitted that evidence of the informant and the victim is not reliable and trustworthy. Learned Advocate took me through the evidence of the informant and pointed out the important facts, which, according to the submission of the learned Advocate, reflect upon the credibility and trustworthiness of the informant. The conduct of the informant as well as the conduct of the victim on the date of the incident is unbelievable and therefore, it creates a doubt ab