IMPORTANT POINT
The presumption of guilt under Section 29 of the POCSO Act is rebuttable and requires the prosecution to establish foundational facts before the burden shifts to the accused to prove innocence.

JUDGMENT :

MALASRI NANDI, J.

Heard Mr R Singha, learned counsel appearing on behalf of the appellant. Also heard Mr B Sarma, learned Additional Public Prosecutor appearing on behalf of the State of Assam.

2. Feeling aggrieved and dissatisfied with the Judgment and Order dated 30.03.2021, passed by the learned Special Judge, (POCSO) Nalbari, in Special (POCSO) Case No. 32/18, by which the accused appellant has been convicted under Section 448 IPC & Section 10 of Protection of Children from Sexual Offences Act, 2012,(hereinafter, in brevity, referred to as “the POCSO Act”), the accused has preferred this appeal. The appellant was sentenced to undergo Rigorous Imprisonment for 7 (seven) years and to pay a fine of 25,000/-(Rupees Twenty Five Thousand) only, and in default to undergo Simple Imprisonment for 5 (five) months for the offence under Section 10 of the POCSO Act, and the accused appellant was also sentenced to undergo Simple Imprisonment for a term of 1 (one) year and to pay a fine of Rs. 1000/-(Rupees One thousand), and in default of payment of fine to undergo Simple Imprisonment for 5 (five) days for the offence under Section 448 IPC. Both the sentences were directed to run concurrently.

3. The case of the prosecution is that Hemen Das, who is the father of the victim lodged an FIR before the Officer-In-Charge, Tihu Police Station, stating inter alia that the accused is his adjacent neighbour. On 22.07.2018, at about 11:00 am, in absence of any person in his house, the accused entered into his house. At that time, his minor daughter aged about 11 years was writing something inside the room. Suddenly, the accused embraced her and kissed her on her cheeks and also touched her private parts. It is also alleged that the accused also tried to commit rape on her. When his daughter raised alarm, the accused fled away from the scene.

4. On receipt of the FIR, a case was registered vide Tihu PS Case No. 129/2018, under Sections 448/376/511 IPC, read with Section 10 of the POCSO Act, 2012, against the accused appellant and investigation was initiated.

5. During investigation, the Investigating Officer visited the place of occurrence, recorded the statements of the witnesses. The victim was also sent to the Court for recording her statement under Section 164 CrPC by the Magistrate. She was also medically examined. After completion of investigation, charge sheet was submitted against the accused appellant under Sections 448/376/511 IPC, read with Section 10 of the POCSO Act.

6. During trial, on appearance of the accused appellant, charge was framed under Sections 448/376(2)(i)/511 IPC, read with Section 10 of the POCSO Act, which was read over and explained to the accused/ appellant, to which he pleaded not guilty and claimed to be tried.

7. To prove the guilt of the accused/ appellant, the prosecution examined 8 (eight) witnesses and exhibited ten documents. On the other hand, the accused appellant adduced three witnesses in support of his defence. After completion of the trial, the statement of the accused appellant was recorded under Section 313 CrPC, wherein he denied the evidence of the witnesses made against him and pleaded his innocence. After hearing the arguments of the learned counsel for the parties, the trial Court had delivered the Judgment convicting the accused as aforesaid. Hence, this appeal.

8. It was urged by the learned counsel for the appellant that in the facts and circumstances of the case, the trial Court has committed a grave error in convicting the accused appellant under Section 10 of the POCSO Act, as the appellant could not have been convicted only on the basis of the sole testimony of the victim. Even considering the prosecution case, as it is, at the best, the case would fall under sexual assault, punishable under Section 8 of the POCSO Act.

9. It is also submitted by the learned counsel for the appellant that there are lots of contradictions in the statements of the witnesses. The learned trial Court while con