The factual foundations of the prosecution case must be established to attract the statutory presumption under Section 29 of the POCSO Act, and inconsistencies and contradictions in the victim's statements can undermine the credibility of the prosecution case.

ORDER :

Joymalya Bagchi, J.

With the consent of the parties, the appeal is taken up for hearing. The appeal is directed against the judgment and order dated 05.03.2019 and 08.03.2019 passed by learned Additional Sessions Judge,1st Court, Bongaon, North 24-Paraganas and Judge, Special Court, Bongaon, North 24-Paraganas in Special (POCSO) No.95 of 2017 convicting the appellant for commission of offence punishable under Section 376(2)(i)(n) of the Indian Penal Code and under Section 6 of the POCSO Act and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 15,000/- and in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 376(2)(i)(n) of the Indian Penal Code and to suffer rigorous imprisonment for a term of 10 years and to pay fine of Rs. 15,000/- and in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 6 of the POCSO Act, both the sentences to run concurrently.

2. Prosecution case as levelled against the appellant in the first information report lodged by P.W.I, mother of the victim girl is to the effect that the victim girl was a student of class IX and aged about 14 years. Appellant was her private tutor. Appellant had raped her daughter on a number of times in the house where he gave tuition. On 08.08.2017 at 7.30 P.M. appellant came to her residence and forcibly raped her daughter. He also threatened her daughter with dire consequences. After few days, her daughter started behaving strangely and upon persuasion on 14.09.2017, she disclosed the incident to her. On the self-same day, she lodged a written complaint resulting in registration of Bagdah P. S. Case No.666 dated 14.09.2017 against the appellant.

3. In the course of investigation statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure. She was medically examined. Appellant was arrested and charge sheet was filed. Charges were framed against the appellant under Section 376(2) (i)(n) of the Indian Penal Code and under Section 6 of the POCSO Act. To prove the case, the prosecution examined ten witnesses. Defence of the appellant was one of innocence and false implication.

4. In conclusion of trial, the Trial Judge by the impugned judgement and order dated 05.03.2019 and 08.03.2019 convicted and sentenced the appellant, as aforesaid.

5. Mr. Bhattacharyya, learned Advocate appearing for the appellant argues that the evidence of the victim girl (P.W.2) is squarely at variance not only with the deposition of her mother (P.W.I) but also vis-a-vis her earlier statement before Magistrate. While in her statement before the Magistrate under section 164 of the Code of Criminal Procedure, P.W.2 stated that she had been forcibly raped by the appellant on an earlier occasion and thereafter on 9th August, 2017 at 8.30 P.M. at her residence, in Court she claimed that a singular act of forcible rape had been perpetrated at the house of the appellant on 08.08.2017 in the afternoon around 1.30 P.M. Moreover, the time, place and circumstances relating to forcible rape as narrated by the victim girl (P.W.2) is also at variance with the case alleged in first information report as well as the deposition of her mother (P.W.I). While in the first information report as well as the deposition of her mother (P.W.I) in Court, it is alleged that the victim had been repeatedly raped on a number of times in the tuition room and thereafter at the residence of the complainant in the evening of 08.08.2017, the victim is silent with regard to the charge of multiple rape and alleged she had been raped in the afternoon of 08.08.2017 at the residence of the appellant.

6. Mr. Bhattacharyya further argues that the age of the victim has not been proved by way of ossification test or production of relevant documents from the school records.