IMPORTANT POINT
The foundational evidence, corroborating medical evidence, and the burden of proof on the accused to rebut the presumption under the POCSO Act were central to the judgment.

JUDGMENT :

RAJARSHI BHARADWAJ, J.

1. The instant appeal arises out of a judgment and an order passed by the Court of Learned Additional District & Sessions Judge at North and Middle Andaman, Mayabunder, dated March 25, 2021 in Special POCSO Case No. 35 of 2020, convicting the appellant under Sections 6 of the Protection of Children from Sexual Offences (hereinafter referred to as ‘POCSO’) Act, 2012 read with Section 376 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs. 2,00,000/- only in default to suffer rigorous imprisonment of a year.

2. The genesis of the prosecutrix case originates when she, the youngest sister of the accused person’s wife, lodged a written statement with the Billiground Police Station (BSP), stating that the accused (herein the appellant), her brother-in-law, touched her breast and forcefully committed physical contact on three occasions while she was staying at their house in 2020. She confided in her elder sister about the incident, but her sister was intimidated by the accused and did not disclose the matter to anyone. The victim was also sexually exploited by another person named one Sourav Mondal. Based on her statement in that case, an FIR was registered against the accused under section 3/4/5/6/7/8/21 of the POCSO Act, 2012 read with section 376/506 of the IPC.

3. Following the registration of the FIR, the investigating officer, SI Arothi Roy, conducted an investigation, which included visiting the place of occurrence, examining witnesses, conducting searches and collecting medical reports of both the victim and the accused. Upon completion of the investigation, the Station House Officer (SHO) of Billiground PS submitted a charge sheet against the accused under the relevant sections of the POCSO Act, 2012 and IPC.

4. A designated Special Court under the provisions of the POCSO Act, 2012 took cognizance of the offense as per section 33(1) of the said Act. The accused persons (herein the appellant and his wife) were produced before the court and the charges under Section 6 and 8 of the POCSO Act, 2012 and under Section 376/506 of the IPC were framed against the appellant and under Section 21 and 17 of the POCSO Act, 2012 against his wife Sulata Mondal which were read out and explained to them. The accused pleaded not guilty and opted for a trial. In the course of trial, prosecution examined ten (10) witnesses and exhibited number of documents as Exhibits 1-11 respectively. However, the learned court ultimately passed an order convicting the accused person, herein the appellant and sentenced him to suffer rigorous imprisonment for life and acquitted the wife of the accused. Being aggrieved by the said Judgment/Order passed by the Special Court, the appellant preferred the present appeal.

5. The Learned counsel appearing on behalf of the appellant contends that the victim girl had previously instigated another criminal proceeding, leading to the conviction of a different accused, one Sourav Mondal under section 6 of the POCSO Act, 2012. It was from the victim girl’s statement recorded under section 164 of the Cr. P.C in that particular case that the current sets of facts were unveiled. The victim girl has exhibited inconsistent stances on different occasions throughout the legal process. The appellant in the present case has been wrongfully implicated due to his knowledge concerning the association between the victim and one Sourav Mondal.

6. The learned Counsel representing the State contends that no animosity could be established by leading cogent evidence by the appellant other than suggestion of animosity. Furthermore, the contention that the prosecutrix herein the victim girl may have been involved in habitual sexual activity does not undermine her case. Even if it is proven that the prosecutrix herein the victim girl is accustomed to sexual encounters, it does not negate the credibility of her testimony more so