Point of Law: Statutorial presumption u/s 29 and 30 of POCSO Act certainly places a persuasive burden on appellant to show that he does not possess requisite culpable mental state for offence for which he is prosecuted.

JUDGMENT :

1. Heard Mr. B. Phukan, learned counsel for the appellant and Mr. B. Sharma, learned

Addl. P.P. appearing for the State of Assam.

2. This appeal is directed against the judgment & order of conviction and sentence dated 25.11.2019 passed by the learned Special Judge, Sivasagar in Special (P) Case No. 28/2018 whereby and whereunder the appellant has been convicted under Section 10 of Protection of Children from Sexual Offences Act (POCSO Act for short) and sentenced to undergo Simple Imprisonment (SI) for 5 years and to pay a fine of Rs. 5,000/-with default stipulation.

3. The prosecution case in brief is that the informant ‘X’ is the mother of the victim and she lodged an FIR with the police at Simaluguri P.S. alleging that on 02.07.2018 Sri Holiram Borah (hereinafter referred to as the appellant) called her minor daughter say – ‘Y’ to his house and as the appellant was indulging in some sexual activities with ‘Y’, ‘X’ noticed the incident and apprehended the appellant with the help of the villagers. A village meeting was called and as no decision was arrived at, the FIR was lodged which was registered as Simaluguri P.S. Case No. 105/2018 u/s 294/506 of Indian Penal Code (IPC) read with Section 8 of the POCSO Act.

4. The Investigating Officer (IO in short) embarked upon the investigation and on completion of investigation, he submitted charge-sheet against the appellant under Section 294/506 IPC read with Section 8 of the POCSO Act. At the commencement of trial, a formal charge under Sections 376AB of IPC and Section 6 of the POCSO Act was framed and read over and explained to the appellant. The appellant adjured his guilt and claimed innocence.

5. To substantiate its stance, the prosecution adduced the evidence of nine [9] witnesses while the appellant did not tender any evidence in defence. On the incriminating circumstances arising against him, the appellant was examined u/s 313 of the Code of Criminal Procedure, 1973 (Cr.PC for short) and his responses were recorded.

6. The trial Court decided this case on the following points:

“(i) Whether on the date of occurrence the accused called the victim girl and took her with him?

(ii) Whether at the time of incident the victim girl was aged about 6/7 years of age?

(iii) Whether the accused committed the offence as alleged in the FIR?

7. It is submitted on behalf of the appellant that as the prosecution failed to prove this case beyond reasonable doubt, presumption as per Sections 29 and 30 of the POCSO Act does not operate against him. The learned counsel for the appellant relied on the decision of the High Court of judicature at Tripura in Sri Lalmalsom Kaipeng vs The State of Tripura in Criminal Appeal (J) 34 of 2019 decided on 01.04.2021 wherein it has been observed that if an accused is convicted only on the basis of presumption as contemplated in Sections 29 and 30 of the POCSO Act, then, it would definitely offend Articles 20(3) and 21 of the Constitution of India. The statement of the victim u/s 164 Cr.PC is contradictory to her deposition in Court. The place of occurrence described in her earlier statement is not similar to the place of occurrence described in her evidence. The place of occurrence described by PW-1 is the accused-person’s house. The PW-2’s evidence is not substantiated by medical evidence. Prior to this incident, the appellant’s daughter-in-law lodged an FIR against the victim’s father.

8. Per contra, the learned Addl. P.P. laid stress in his argument that a lenient view has been taken by the trial Court. The victim is a 7 year old minor and her evidence is not required to be corroborated. However an independent witness, PW-4 has substantiated her evidence.

9. On the anvil of these submissions, I proceed to dispose of the appeal. The question that falls for consideration in this appeal is that :-

“Whether the learned Trial Court has erred by convicting the appellant?”

10. To decide this case in its proper perspective, it is necessary to reappraise the eviden