The main legal point established in the judgment is the duty of the prosecution to prove its case, the applicability of different legal provisions based on the victim's age, and the rebuttable presumption under Section 29 of the POCSO Act.

JUDGMENT

Bibhas Ranjan De, J. - This is an appeal against the judgement and orders of conviction and sentenced under Section 6 of the Protection of Children from Sexual Offence Act 2012 passed by the Ld. Special Court, (Additional District Judge 2nd Court) at Malda (Sadar) in Sessions trial no. 164 of 2016 (POCSO Case No 75 of 2016) arising out of English Bazar women PS case no. 114116 dated 1.05.2016.

Prosecution case in Brief:

2. One Bina Mondal (PW-2) lodged a written complaint on 01.05.2016 before inspector in charge English Bazar Women Police Station, District Malda alleging inter alia that on 01.05.2016 at about 12.00 hours her daughter and son in law going to working filed leaving their minor daughter (victim) alone at home. After returning home they noticed their daughter lying on the bed. On being asked victim revealed that appellant (Digen Mondal) took her to his bed room and made her lying flat on his bed and raped on her. When she tried to make noise appellant pressed her mouth. Thereafter, appellant fled away from his room leaving the victim on his bed alone. Victim then returned to her house.

3. On receipt of the complaint English Bazar women PS case no. 114116 was started and endorsed to Sub Inspector of Police Kandara Roy for investigation. Investigating Officer (for short IO) examined complainant (PW- 2) and victim girl (PW-1) and also got the victim girl (for short V.G) examined by the doctor attached to Malda Medical College. I.O visited place of occurrence and prepared rough sketch map and examining available witnesses. I.O. Seized bed sheet from the house of the appellant and one coloured panty of the victim from her house by one seizure list. Appellant was arrested. On the prayer of I.O statement of V.G was recorded under Section 164 Criminal Procedure Code (for short Cr.P.C) and also got the appellant examined by the doctor. I.O collected birth certificate and school certificate of victim girl. On completion of investigation charge sheet has been filed.

4. Ld. Judge of the Trial Court framed charge under Section 376 (2) (i) of the IPC and under Section 6 of the POCSO Act against the appellant/accused, on 23.08.2016, who pleaded not guilty and claimed to be tried. Hence trial.

5. During trial prosecution examined 11 witnesses and produced a good number of documents were admitted in evidence as exhibits 1 to 7/1. After conclusion of evidence appellant was examined under Section 313 of Cr.P.C.

When appellant denied all the questions relating to incriminating circumstances, appearing in the evidence.

6. Ld. Trial Judge, appreciated all the evidence and documents on record and returned findings in following words:

'As per Section 29 of the POCSO ACT, presumption is against the accused and he has to prove that he is innocent after discharging the onus of proof by the prosecution. As discussed previously, accused has not taken any particular defence apart from denying the prosecution case. In this case there is no evidence in cross-examination to disbelieve the case of the prosecution. In this case, accused has not produced any evidence to exonerate himself. Thus, the accused has also failed to discharge his onus to prove. It is true that though the presumption under Section 29 of the POCSO Act is against the accused, but it is the duty of the prosecution to prove its case. I have already stated that the prosecution has able to prove from oral and medical evidence that the accused has partially inserted his penis into the vagina of the victim child. So, without hesitation, I can say that the victim child sustained penetrative sexual assault by the accused.

In this case charge has been framed for offence punishable U/s - 376 (2)(i) of IPC read with u/s 6 of POCSO Act. But for the same offence provision under two different Statute would not lie. Section 42 of the POCSO Act made it clear that the provisions would lie in alternate and the conviction should be given under the provision of that Statute in which the punishment