Point of law: since the girl was not proved by cogent evidence to have been a minor at the relevant period, the question of applicability of either Section 29 or Section 4 of the POCSO Act does not arise.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The present challenge is directed against a judgment dated August 1, 2017 and sentence dated August 2, 2017, whereby the appellant was convicted under Section 376 of the Indian Penal Code (I.P.C.) as well as under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’). The sentence given was to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 50,000/- (Fifty Thousand), in default, to suffer simple imprisonment for one year for the offence punishable under Section 4 of the POCSO Act.

2. The brief facts of the case are that, the accused/appellant was the private tutor of the victim girl. Allegedly, the accused committed penetrative sexual assault upon the victim girl, purportedly minor at that point of time, on several occasions by dishonestly inducing her to have relation with the accused on the promise of the accused to marry her.

3. Learned counsel appearing for the appellant argues that the presumption contemplated under Section 29 of the POCSO Act, that the accused has committed the offence, unless the contrary is proved, is not applicable in the present case, since the victim merely was not a minor at the juncture of the alleged offence.

4. Learned counsel contends that the birth certificate produced to prove the age of the victim was marked as an exhibit on verbal submission of the victim’s father. The issuing authority did not prove the authenticity of the said certificate. Moreover, the certificate was issued after nine years of birth. As such, it is argued, the birth certificate could not be relied on to determine that the victim was a minor at the relevant point of time, thus, falling outside the purview of the POCSO Act itself.

5. It is further contended that the victim girl was admittedly having an affair with a different person than the accused, namely one Ananda Sinha, who married the victim subsequently. As such, the allegation that the accused was the father of the child born to the victim as a result of the alleged offence, is unsubstantiated, since a reasonable doubt is created as to the paternity of the child. Moreover, although the appellant sought for a DNA examination to determine the paternity of the child before this Court in appeal, the victim categorically disagreed. As such, an adverse inference ought to be drawn against the victim with regard to the paternity of the child.

6. That apart, the complaint was lodged at a stage when the victim was pregnant for five months, although the alleged incident occurred much prior to that. Hence, an attempt to cast blame upon the accused to avoid social stigma cannot be ruled out.

7. As regards the offence allegedly committed under Section 376 of the Indian Penal Code, it is argued that sufficient material evidence was not produced to establish the allegations against the accused beyond reasonable doubt. Even the doctors’ certificates had not indicated any incriminating factor against the accused.

8. Learned counsel appearing for the State contends that as many as ten witnesses were produced by the prosecution, who corroborated the case of the victim. That apart, the birth certificate produced created a sufficient presumption to hold that the victim girl was minor at the relevant juncture, which presumption could not be dislodged by any cogent evidence by the accused. That apart, only one of the witnesses stated about the alleged affair between the victim’s present husband and her at the relevant point of time, which cannot be relied on in the absence of further corroboration.

9. Learned counsel appearing for the de facto complainant contends on the limited aspect that this Court has ample power to grant victim compensation to the victim, commensurate with the offence committed against her.

10. Upon hearing learned counsel for the parties, this Court comes to the following conclusions:

DW-1 was one Basudev Basu, who, as per his evidence, knew the accuse