The prosecution must prove foundational facts, including the victim's age, beyond reasonable doubt, even under statutory presumptions of the POCSO Act.

JUDGMENT :

JITENDRA KUMAR, J.

1. The present appeal has been preferred against the impugned judgment of conviction and order of sentence dated 11.01.2023 and 18.01.2023 respectively passed by Ld. Additional District and Sessions Judge-VIIth-cum-Special Judge, POCSO Act, West Champaran at Bettiah in POCSO Case No. 201 of 2018, S.G.R. No. 62 of 2018, arising out of Balthar P.S. Case No. 66 of 2018, whereby the sole appellant has been found guilty of offence punishable under Section 376(1) of the Indian Penal Code and Section 4 of the POCSO Act and sentenced to undergo R.I. for ten years under Section 376(1) of the Indian Penal Code and R.I for 10 years under Section 4 of the POCSO Act. A fine of Rs. 20,000/- payable to the victim has also been imposed upon the Appellant. In case of default to pay the fine, the convict has been ordered to undergo additional S.I. of three months. Ld. Trial Court has also directed the Secretary, District Legal Services Authority, Bettiah, West Champaran to pay Rs. 3,00,000/- to the victim towards compensation.

2. The F.I.R. bearing Balthar P.S. Case No. 66 of 2018 has been registered on written report of the victim/informant dated 28.05.2018 addressed to Officer-in-Charge, Balthar Police Station under Section 376, 323, 504, 506, 341 read with Section 34 of the Indian Penal Code, Section 4 of POCSO Act and Sections 66(E)/67 of Information Technology Act against four Accussed persons, viz. Islam Miyan, Kuresh Miyan, Motaleek Miyan and Guddu Miyan. The written report was lodged at 5:15 P.M.

3. The prosecution case, as emerging from the written report of the informant is that at 6:00 AM on 20.05.2018, the informant had gone out from her home near Qabristan to answer the call of nature. At that time, her villager i.e. the Appellant herein took her into his hold from back and pushed her on the ground and having a country made pistol in his hand threatened her not to raise hulla, otherwise he would kill her and, thereafter, he untied her Shalwar and pushed her down and forcibly raped on her. When she told him that she would disclose the occurrence to her villagers, the Appellant threatened her with his gun and after opening her clothes and raising it, clicked various photos of her in naked condition and threatened that if she would disclose it anywhere, he would make these photos viral on Mobile. Thereafter, he kept on doing it on whatsapp on his Mobile. Thereafter, she went back to her home and disclosed the occurrence to her mother. Thereafter, she along with her mother, uncle Istekhar and villager Doha Hakim, aged about 38 years, went to the house of the Appellant and asked the Appellant and his father about the occurrence. Then the Appellant, his father Kuresh Miyan, Motaleek Miyan, Mosaheb Miyan and Guddu Miyan got angry and started abusing them and slapped and after beating them, they made them flee away and told to do what she can do and claimed that she cannot harm them. Thereafter, Panchayatis were being held in regard to the occurrence and that is why the written report could be submitted late.

4. After lodging of the F.I.R. investigation commenced and after investigation, charge sheet bearing No. 84 of 2018 dated 20.07.2018 was submitted against the sole accused who is Appellant herein, exonerating all other co-accused named in the First Information Report, under Sections 376 & 506 of the Indian Penal Code, Section 4 of POCSO Act and Sections 36(E)/37 of Information Technology Act. Subsequently, cognizance of the offence against the sole accused, who is Appellant herein, was taken by the Ld. POCSO Court and charge under Sections 376, 506 of the Indian Penal Code, Section 6 of POCSO Act and Section 66E, 67 of I.T. Act were framed against the Appellant and the same were read over and explained to the Accused/Appellant, which he pleaded not guilty and claimed to be tried.

5. During trial, the following five witnesses were examined on behalf of the prosecution: