The burden of proof on the accused, presumption of guilt in POCSO cases, and the immateriality of consent in cases involving minors are central legal principles established in the judgment.

JUDGMENT :

Rumi Kumari Phukan, J.

Heard Mr. M.A. Sheikh, learned counsel appearing for the appellant/accused as well as Mr. B.B. Gogoi, learned Addl. P.P., Assam appearing for the State respondent.

2. This appeal is preferred against the judgment and order dated 03.11.2018, passed by the learned Special Judge, Rangia in Spl. Sessions Case No.7/2016, whereby the appellant/accused has been convicted u/s. 4 of the POCSO Act and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/-, in default, simple imprisonment for another one year.

3. The prosecution case in brief is that: on 09.07.2015, informant Rubul Ali, the father of the victim lodged an FIR before the Officer-in-charge of Changsari Police Station, stating inter alia that on the same day at about 11:30 a.m., the accused taking advantage of his absence, took his minor son to the backyard of the informant s house and thereafter committed penetrative sexual assault causing injury to the victim. Resultantly, the Changsari P.S. Case No.141/2015, u/s.377 IPC, read with Section 4 of the POCSO Act was registered. After completion of the investigation, charge sheet was submitted against the accused and the case was committed to the learned Court of Sessions Judge, Amingaon for trial.

4. On appearance of the accused and hearing the parties the trial Court framed charge against the accused person u/s.4 of the POCSO Act and the same was read over and explained to which the accused person pleaded not guilty and claimed to be tried.

5. During the course of trial, the prosecution examined as many as six witnesses in support of their case whereas the accused person examined himself as DW.1. After completion of evidence, statement of the accused u/s.313 CrPC was recorded and after perusal of the materials available and considering the statement of witnesses, the learned trial court convicted the accused as stated above.

6. Being aggrieved by the aforesaid order of conviction and sentence, the present appeal is preferred on the ground inter alia that the trial Court erred in law and facts, while passing the impugned judgment and order.

7. I have heard the arguments advanced by the learned counsel for the parties and perused the materials available on records.

8. Pw.1, the victim stated in his evidence that the occurrence took place in the daytime. The accused person used to work in their house as cowherd. On the day of occurrence, the accused took him under the bamboo grove and after opening the wearing of the victim and the accused, penetrated his penis into the anus of the victim. As a result, blood oozed from his anus. The victim further alleged that the accused used to do such sexual penetration with him since many times. Hearing screaming of the victim, his mother came and took him away. On her query, the victim told about the incident to her. Thereafter the victim was taken to the hospital and was given medical treatment. The statement of the victim was recorded u/s.164 CrPC, which is Ext.1 and Ext.1(1) and Ext.1(2) are his signatures. The victim stated that he was a school going student and at the time of occurrence it was summer vacation.

9. Pw.2, Rubul Ali, the informant as well as the father of the victim stated in his evidence that he had employed the accused as a cowherd to look-after his cattle. At the time of occurrence, he was at Guwahati and after returning back in the evening, he came to know about the incident from his wife, who told him that blood came out from the anus of the victim. He lodged the FIR, Ex.2 and Ext.2(1) is his signature.

10. Mrs. Hasina Hussain, mother of the victim who was examined as PW.3 stated in her evidence that the victim is her son. She stated that the occurrence took place in the year 2015 and she was working in the kitchen. She stated that the victim was playing with the accused but suddenly both of them disappeared. Thereafter she called her son by his name and she got the reply of her son coming from the backyard o