IMPORTANT POINT
The statutory presumption of guilt under Section 29 of the POCSO Act places the burden on the accused to prove their innocence in cases of sexual offences against children, which was upheld in this judgment.

JUDGMENT :

CHAKRADHARI SHARAN SINGH, J.

1. The appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure assailing the judgment of conviction dated 30.11.2021 and an order of sentence dated 06.12.2021 passed by the Special Judge, Exclusive POCSO Court cum ADJ-VI, Gaya, in connection with POCSO Case No. 52 of 2019 CIS No. POCSO 52/2019 arising out of Fatehpur P.S. Case No. 124 of 2019 whereby and whereunder, the appellants have been convicted and sentenced as under:

Appellant Saryu Manjhi

Appellant Ajai Manjhi

2. The age of the victim for the purpose of present adjudication is not in dispute. In the FIR, the victim’s age has been mentioned as three years by her mother who is the informant. During the medical examination, her age has been found to be 3 to 4 years. In the assessment of the trial court, as on the date of her evidence on 27.01.2021, the victim’s age was four years.

3. A written complaint of the victim’s mother (PW-1) addressed to the Officer-in-charge of Fatehpur PS dated 24.05.2019 is the basis for registration of the connected Fatehpur PS Case No. 124 of 2019 disclosing commission of the offences punishable under Section 376AB of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to the as the ‘POCSO Act’ in short). It was alleged in the written complaint of the informant that in the night of 23.05.2019, the informant and other family members were sleeping after having taken their meals. At about 3:00 am when the informant’s son (not examined), returned after having attended a marriage function, he noticed the absence of the victim in the house. During the course of rigorous search for her they learnt that these appellants had kidnapped the victim and taken her to Sevari Nagar village and and committed rape upon her. When the villagers raised hulla, they escaped leaving the victim behind. The victim was subjected to medical examination on 25.05.2018 at 2:25 pm. The Doctor (PW-2) found rupture of hymen and third degree perineal tear. Scratch marks on the face and neck of the victim of 48-72 hours of duration were also found.

4. It is the prosecution’s case that these appellants had confessed their guilt in their statements made before the Sub Inspector Abujar Ansari on 26.05.2019. In the wake of the disclosures said to have been made by these appellants before the police one Shintu Manjhi was also made an accused. Clothes which the victim was wearing were sent for forensic examination.

5. The police upon completion of investigation submitted chargesheet on 31.10.2019 against three persons including these two appellants for commission of the offences punishable under Sections 376AB/376DB/120B/34 of the Indian Penal Code and Section 6 of the POCSO Act, whereupon cognizance of the aforesaid offences was taken.

6. It further appears that the case records of accused Shintu Manjhi was separated and sent to the Juvenile Justice Board in the light of claim of juvenility made on his behalf. It was in that background that these two appellants stood charged of commission of the offences punishable under Sections 376AB of the IPC and Section 6 of the POCSO Act. .

7. At the trial prosecution examined altogether six witnesses including the victim (PW-5) and her mother, the informant (PW-1). One Munni Devi, a resident of village Sevari Nagar where the occurrence had taken place deposed at the trial as PW-3. The Investigating Officer deposed as PW-6 and the Doctor who had examined the victim as PW-2. The lady police officer posted as Office