IMPORTANT POINTS
The presumption under Section 29 of the POCSO Act does not, in any way, affect the obligation of the prosecution to produce admissible evidence which, if accepted, would constitute the offence and when the prosecution produces admissible evidence to prove the foundational facts constituting the offence, the accused must, at the pain of losing, prove that he did not commit the offence on the principle of preponderance of probability-The essence of Section 29 of the POCSO Act is only that a higher degree of proof of facts constituting the guilt of the accused, as is usually insisted in criminal trials, is not insisted from the prosecution in a case arising under the POCSO Act.

JUDGMENT :

The sole accused in S.C.No.179 of 2016 on the files of the First Additional Sessions Court, Kollam is the appellant in the appeal. He challenges in this appeal, his conviction and sentence in the said case.

2. The accusation in the case is that on 12.9.2015, at about 1 a.m., the accused has committed penetrative sexual assault on the victim girl aged eight years, at her residence, by inserting his penis into her mouth, and thereby committed the offences punishable under Section 5(n) read with Section 6, and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). The accused is the uncle of the father of the victim girl.

3. On the accused pleading not guilty of the charges levelled against him, the prosecution examined 14 witness on its side as PW1 to PW14 and proved through them 12 documents as Exts.P1 to P12. Among the witnesses examined, PW1 is the mother of the victim girl, PW2 is the victim girl herself, PW4 is a neighbour of the accused and PW8 is the Headmistress of the school where the victim girl was pursuing her studies at the time of the alleged occurrence. PW10 is the Police official who recorded the statement of the victim girl. PW11 is the doctor who examined the victim girl on 15.9.2015. PW13 is the Police official who registered the first information report in the case and PW14 is the investigating officer in the case. Among the documents, Ext.P1 is the first information statement. Ext.P5 is a letter addressed by PW8 to the investigating officer and Ext.P8 is the first information report in the case.

4. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences alleged against him and accordingly, convicted and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/-and in default of payment of fine, to undergo simple imprisonment for three months, for the offence punishable under Section 5(n) read with Section 6 of the POCSO Act. No separate sentence was awarded for the offence punishable under Section 7 read with Section 8 of the POCSO Act. As noted, the accused is aggrieved by his conviction and sentence.

5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.

6. The learned counsel for the appellant submitted, at the outset, that the case being one arising under the POCSO Act, it was obligatory for the prosecution to prove that the victim girl is a child, and the said fact has not been proved by the prosecution. It was pointed out by the learned counsel that what was produced by the prosecution to prove the age of the victim girl is Ext.P5 letter addressed by the Headmistress of the school, where the victim girl was pursuing her studies, to the investigating officer in the case informing him the age of the victim girl. According to the learned counsel, the said document is hit by Section 162 of the Code of Criminal Procedure (the Code). The learned counsel for the appellant has placed reliance on the decision of the Apex Court in Kali Ram v. State of H.P., 1973 KHC 634 as also the decision of this Court in Rajeevan and Others v. Superintendent of Police, Cochin and another, 2011(1) KHC 738, following the decision of the Apex Court in Kali Ram, in support of the said proposition. It was argued by the learned counsel that the accused is entitled to be acquitted solely on that ground. The learned counsel for the appellant has also pointed out that as regards the core aspect of the crime, viz, the sexual assault, there is only the evidence of the victim girl. If the said evidence is viewed in the light of the various other circumstances brought out in evidence, it could be seen that it is not reliable and credible enough to rest the conviction of the accused solely based on the same. The learned counsel has elaborated the said submission pointing out that though the alleged occurrence took place on 12.9.2015, the crime was registered only af