Point of law: Conviction upheld - In the absence of cogent evidence brought on record to prima-facie establish the foundational facts, conviction of the accused cannot be based solely on presumption of guilt, premised on the precincts of the doctrine of reverse burden

JUDGMENT :

Suman Shyam, J.

1. Heard Mr. N.J. Das, learned counsel appearing for the appellant. We have also heard Mr. M. Phukan, learned APP, Assam, appearing for the State. None has appeared for the informant.

2. This appeal is directed against the judgment and order dated 22/11/2019 passed by the learned Special Judge, Barpeta in Special POCSO Case No. 72/2018, finding the appellant guilty of committing penetrative sexual assault under section 3 of the POCSO, Act,2012 [here-in after referred to as "POCSO"] and sentencing him under Section 4 of the POCSO to undergo rigorous imprisonment for a period 12 years and also to pay fine of Rs. 2,000/-, in default, to suffer simple imprisonment for another 3 (three) months.

3. The facts of the case, briefly stated, are that on 26/11/2016, one Nazrul Islam i.e. the uncle of the victim girl, had lodged an ejahar before the In-Charge, Barbhita Police Outpost, in the district of Barpeta, informing that on 10/10/2016, at about 5 p.m., the accused No.1/appellant, acting in a conspiracy with the accused nos. 3, 4, and 5, had forcibly taken away his niece to the house of the accused no. 1 and committed rape on her against her will. In the ejahar, it was mentioned that the delay in lodging the FIR was because of the settlement arrived at in the social meeting. Based on the ejahar dated 26/11/2016, G.D. entry No. 460 dated 26/11/2016 was made in the Barbhita Police Outpost and the ejahar was forwarded to Kalgachia Police Station for registering a case under the appropriate provisions of law. Accordingly, Kalgachia Police Station Case No. 880/2016 was registered under Section 120(B)/34 of the IPC read with Section 4 of the POCSO Act and the Officer-in-Charge of Barbhita Police Outpost took up the matter for investigation.

4. During the course of investigation, the I.O. had recorded the statements of the witnesses, drew sketch map and sent the victim girl for medical examination. The statement of the victim was also recorded under Section 164 Cr.P.C. However, the accused could not be arrested. Upon completion of investigation, the I.O. had laid charge sheet against the accused Manirul Islam under Section 4 of the POCSO showing him as an absconder. However, no material was found against the other accused persons and hence, they were not sent up for trial. It appears that after submission of charge-sheet by the Police, the accused had entered appearance in the Court of the learned Special Judge, Barpeta. Thereafter, charge under section 4 of the POCSO was framed against the accused and the same was read over and explained to him. However, since the accused had pleaded not guilty and claimed to be tried, the matter went up for trial.

5. During the course of trial, the prosecution side had examined as many as 6 (six) witnesses including the IO and the doctor who had conducted medical examination on the victim. After conclusion of recording of evidence of the prosecution witnesses, the accused was examined under Section 313 of the Cr.P.C., wherein, he had denied his involvement in the matter and had taken the plea of false accusation.

6. Upon conclusion of trial, the learned Special Judge had held that from the Birth Certificate of the victim girl adduced as Ext. A, it was proved that on the date of the occurrence, the victim was aged 15 years 1 month and 15 days. It was also observed that the evidence adduced by the prosecutrix (victim girl) was trustworthy and, therefore, drawing presumption under Section 29 and 30 of the POCSO the learned Special Judge had found the accused guilty under Section 4 of the POCSO. Accordingly, the accused was sentenced as indicated above.

7. By referring to the materials available on record, Mr. N.J. Das, learned counsel appearing for the appellant has argued that there was more than 46 days delay in lodging the ejahar and the victim was also examined nearly 60 days after the alleged occurrence. But there is no plausible explanation for the delay. Urging that delay in lodging