The prosecution must establish the victim's age as a child under the POCSO Act to invoke statutory presumptions, and the appellate court respects the presumption of innocence in acquittal cases.

JUDGMENT :

(Chandra Shekhar Jha, J.)

Heard learned counsel for the appellant-original informant and Mrs. Abha Singh, learned A.P.P. for the State and learned counsel for the respondent no. 2.

2. The present appeal has been filed under Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”) by the appellant-original informant against the impugned judgment and order of acquittal dated 21.03.2023 passed by learned Additional District & Sessions Judge-VIth-cum–Special Judge, POCSO Act, Samastipur in connection with T.R. No. 28/23 @ POCSO Trial No. 28/2023 arising out of Tajpur P.S. Case No. 62 of 2014 registered under Section 447, 341, 323, 504, 506/34 of the Indian Penal Code and under Section 10 of the POCSO Act, whereby and whereunder the learned Judge has pleased to acquit accused/respondent no. 2.

3. The brief facts of the case is that on 03.03.2014, the respondent no. 2 allured the five years old daughter of the appellant-original informant and taken away in tobacco field and misbehaved with her after undressing her, while she was playing at about 4 P.M. The daughter of the appellant-original informant came house crying and narrated the whole story. Thereafter, appellant-original informant called the nearby people and told them regarding the occurrence. The appellant-original informant further alleged that in the night at about 8:00 P.M., all the accused persons except respondent no. 2 herein gathered at the door of the appellant-original informant and abused him and threatened that if he’ll go before the panchayat or has taken legal action, then all the family members will be killed.

4. On the basis of aforesaid statement, the formal FIR came to be registered as Tajpur P.S. Case No. 62 of 2014 under Sections 447, 341, 323, 504, 506/34 of the Indian Penal Code and under Section 10 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the “POCSO Act”) against respondent no. 2 and other accused persons. After investigation, the Investigating Officer submitted charge-sheet against the respondent no. 2 and other accused persons under Sections 447, 341, 323, 504, 506/34 of the Indian Penal Code and under Section 10 of the POCSO Act, vide charge-sheet No. 78/14 dated 31.07.2014. Thereafter, cognizance has been taken under aforesaid sections by learned Special Court of original jurisdiction.

5. The learned special trial court, on the basis of the materials collected during investigation, framed charges against respondent no. 2 and others under Sections 376/511, 341, 323, 504, 506 of the I.P.C. and under Section 6 of the POCSO Act read with Section 120-B of the I.P.C.

6. Before the learned trial court, the prosecution had examined altogether nine witnesses. They are (i) PW-1 the Victim; (ii) PW-2 Sunil Kumar Jha; (iii) PW-3 Veda Nand Jha; (iv) PW-4 Tara Kant Jha; (v) PW-5 Sumer Jha; (vi) PW6 Jagdish Jha; (vii) PW-7 Umesh Jha; (viii) PW-8 Kavita Devi and (ix) PW-9 Phulendra Prasad Singh (I.O. of this case).

7. The defence has also produced six witnesses who are (i) DW-1 Subodh Jha; (ii) DW-2 Shanti Devi; (iii) DW-3 Baby Devi; (iv) DW-4 Vikash Kumar Jha; (v) DW-5 vishwanath Jha and (vi) DW-6 Grand-mother of the victim.

8. The further statement of respondent no. 2 and others under Section 313 of the Cr.P.C. came to be recorded. After conclusion of trial, the learned trial court acquitted the respondent no. 2 and others from the charges levelled against them.

9. Hence, the Present appeal.

10. It is submitted by learned counsel appearing on behalf of the appellant that victim/PW-1 categorically deposed against respondent no. 2 namely, Ramchandra Jha, that he took her in nearby tobacco field and opened her pant with an intention to commit rape upon her and as she cried out of the act committed by aforesaid respondent, Veda Nand Jha/PW-3 came over there, upon which respondent no. 2 fled away. It is pointed out that this testimony of victim remains un-rebutted upon her cross-