The prosecution must prove foundational facts of age and sexual assault beyond reasonable doubt, even with statutory presumptions under the POCSO Act.

JUDGMENT :

(Jitendra Kumar, J.)

The present appeal has been preferred against the impugned judgment of conviction and order of sentence dated 22.09.2018 and 24.09.2018, respectively passed by Ld. Additional District and Sessions Judge-Ist-cum-Special Judge (POCSO), Kaimur at Bhabhua in POCSO Trial Registration No. 21 of 2017, arising out of Bhabhua Mahila P.S. Case No. 34 of 2017, whereby the sole appellant has been found guilty of offence punishable under Sections 376(2)(i) of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act and sentenced to undergo R.I. for 15 years and to pay a fine of Rs. 50,000/- under Section 376(2)(i) of the I.P.C. In case of default to pay the fine, he has been ordered to undergo additional R.I. for six months. But no sentence was passed under Section 4 of the POCSO Act.

2. On the basis of the written report, Bhabhua Mahila P.S Case No. 34 of 2017 was registered on 15.05.2017 against the sole appellant for the offence punishable under Section 376 of the Indian Penal Code and Section 4 of the POCSO Act, 2012.

3. The prosecution case as emerging from the written report of the informant/Mithlesh Ram addressed to Officer-in-Charge, Mahila Police Station Bhabhua, Kaimur, is that his 11 year old daughter was sleeping in her courtyard along with her mother and brother. All of a sudden, his son felt the urge to deficate. Hence his wife took his son outside. In the meantime, his co-villager Amarjeet Ram, entered his house and gagged his daughter and took her to his own house and committed rape on her. When his wife came back, she could not find her daughter in the courtyard. She heard the cries of her daughter coming from the house of Amarjeet. She tried to enter his house, but, Amarjeet stood at his door with a country made pistol (katta) in his hand. He warned her that if she entered the house, she would be killed. He then pushed her out from his house. There were blood stains on her thighs and she was crying in pain.

4. After registration of the F.I.R., the investigation commenced and charge-sheet bearing no. 29 of 2017 dated 30.06.2017 was filed against the sole appellant Manjit Ram under Section 376 of the Indian Penal Code and under Section 4 of the POCSO Act, 2012 and FIR named Accused/Amarjeet Ram was exonerated by the Police. Subsequently, cognizance was taken and charges were framed against the sole accused facing the Trial.

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

(1) P.W.-1 – Taraman Devi

(2) P.W.-2 – Mithlesh Ram (Informant)

(3) P.W.-3 – Victim

(4) P.W.-4 – Dr. Jitendranth Singh (Doctor)

(5) P.W.-5 – Dr. Meena Pathak (Doctor)

(6) P.W.-6 – Kumari Anchala (I.O.)

6. The prosecution brought on record the following documentary evidences also:

(i) Ext. 1- Signature on the seizure list

(ii) Ext. 2 – Signature on the fardebayan

(iii) Ext. 3 – Report of the medial board

(iv) Ext. 4 – Medical report

(v) Ext. 5 – Pathological report

(vi) Ext.6 – Formal F.I.R.

(vii) Ext. 7 – Endorsement on fardebayan

(viii) Ext. 8- Statement under Section 164 Cr.PC.

7. After closure of the prosecution evidence, accused was examined under Section 313 Cr.PC confronting him with incriminating circumstances which came in the prosecution evidence, so as to afford him opportunity to explain those circumstances. During this examination he stated that he had heard the evidence of the prosecution, but he did not explain any circumstances. However, he denied the charges and claimed to be innocent.

8. The accused/appellant, however, has not examined any witness, nor has brought any documents on record in his defence.

9. Learned Trial Court, after appreciating the evidence on record and considering the submissions of the parties, passed the impugned judgment of conviction and order of sentence, finding that the victim was below sixteen year of age on the date of occurrence. He also found that the Prosecution has proved its case against the appellant under Section 3