The sufficiency and reliability of a child victim's testimony in cases of sexual offences, and the presumption of guilt under POCSO Act.

JUDGMENT

Jasmeet Singh, J. The appellant has filed the present appeal seeking setting aside of the impugned judgment of conviction dated 03.02.2020 and order of sentence dated 20.02.2020 convicting the appellant u/s 10/12 Protection of Children from Sexual Offences Act, 2012 (herein after called `POCSO.) and section 454/506 (II) IPC in session case no. 57694/2016 titled "State vs Kishore Kumar."

2. By the order dated 20.02.2020, the appellant has been sentenced to undergo Rigorous Imprisonment for three years along with a fine of Rs.2500/- for committing an offence punishable under Section 454 IPC. He was awarded similar sentences for committing the offence punishable under Section 506(II) IPC and Section 12 of the POCSO Act. In addition, he was sentenced to rigorous imprisonment for a period of five years along with a fine of Rs.2500/- for an offence punishable under Section 10 of the POCSO Act. The sentence of the appellant was suspended during the pendency of the appeal but due to the appellant's incapacity to furnish the surety amount, he could not be released. Hence the appeal has been taken up for hearing.

3. The facts of the case are that the complainant (mother of the child victim) was not present in her house, when accused/appellant Kishore Kumar along with one another boy came to her house at H. No.-H-04/119, Sector-16, Rohini and made her son/child victim namely "HS" age about 07 years open the door of her house by threatening her son.

4. After entering the house, appellant told the victim to sit in a corner and committed unnatural sex with his companion in plain sight of the child victim. It is further alleged that after few days accused/appellant Kishore Kumar again committed the same act.

5. It is also stated the appellant exhibited his private parts and also touched private parts of the child victim.

6. Hence, the present case was registered.

7. It is submitted by the ld. counsel for the appellant that the victim's mother and Appellant are neighbours. Sometime before the incident,, the Appellant's friend's dog attacked the victim's mother and tore her clothes that were drying in her house. She had animosity against the Appellant since that day even though the friend of the Appellant had bought her new clothes. She also threatened the Appellant that she will make sure that the Appellant will not be seen in the locality.

8. Due to the same, she falsely implicated the Appellant in this false and fabricated case.

9. It is also submitted that the prosecution has failed to establish that the Appellant had any motive to commit the offence. Moreover, there are no medical/forensic documents that can corroborate the testimonies of the victim and/or Complainant and there is nothing incriminating against the Appellant in the said MLCs.

10. It is further submitted that victim was merely of 7 years of age at the time of the incident and he was tutored by the Complainant to exert vengeance upon the Appellant. As regards the testimony of the victim, it is submitted that the same is inconsistent.

11. Mr Ajay Vikram Singh, ld APP opposes the same and state states that the child victim testimony is clear and consistent and the trial court has correctly appreciated the facts and the law.

Analysis

12. I have heard learned counsel for the parties.

13. Under section 29 of the POCSO Act, there is a presumption of guilt against the accused. The prosecution is only required to lay the foundational facts which disclose the commission of offence by the accused persons. Once the same has been done, it is the accused who has to rebut the presumption of guilt.

14. In the present case, the testimony of the victim recorded by the prosecution reveals the appellant had come and threatened the victim to open the door. Thereupon the appellant committed sexual assault on the victim.

15. The victim consistently described the incident as follows: While he was alone at home, the accused arrived with another person and threatened him to open