Point of Law: Foundational facts are required to be established by the prosecution by leading evidence beyond any reasonable doubt. The burden on the accused is not to rebut the presumption beyond reasonable doubt.

JUDGMENT :

SANJEEV KUMAR, J.

1. This Criminal Appeal is directed against the judgment of conviction dated 28.02.2020 and order of sentence dated 28.02.2020 passed by the learned Principal Sessions Judge, Rajouri (the trial Court) in Criminal Challan File No. 171/Session titled State of J&K vs. Hardev Singh, whereby the appellant Hardev Singh has been convicted for commission of offence under Section 10 of the Jammu and Kashmir Prevention of Children from Sexual Violence Ordinance, 2018 (for short “POCSO”) and has been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 10,000/-. In the order of sentence it is further provided that in case of default of payment of fine, the appellant shall further undergo rigorous imprisonment for six months.

2. With a view to better appreciate the grounds of challenge urged by learned senior counsel to assail the judgment of conviction and order of sentence, it would be necessary to give brief resume of the prosecution case, as was put up before the trial Court.

3. As per prosecution story, the complainant Shaheen Akhter (PW-1) submitted an application on 22.06.2018 in the Police Station Kandi, making allegations of molestation of her minor daughter by the appellant. It was averred in the application that complainant's husband had gone to Kuwait for labour work. Her daughter, the victim, is studying in Class-IV in Primary School Kotranka. On the fateful day i.e. 22.06.2018 the victim had gone to the school as usual but did not return up to 2.30 P.M. whereas other students had come back from the school. Due to this reason, the complainant went to the school and found that the victim was in the ground weeping and coming towards the house. The complainant asked victim the reason for weeping. The victim told the complainant that her teacher, Hardev Singh, after the school time was over, allowed all other students to leave the school but kept her inside by catching hold of her breast. She was let out only when she raised hue and cry. It was prayed in the application that since the victim was a child and the appellant-teacher had committed offence of outraging her modesty as such action under law be taken against him.

4. On the basis of this written application submitted by the mother of the victim, FIR No. 71/2018 for offence under Section 354-A/341 RPC and Section 9 POCSO was registered in the Police Station Kandi. The investigation was entrusted to ASI Nazir Husain, who, during the course of investigation, visited the spot, prepared the site plan and recorded the statements of the witnesses under Section 161 Cr.P.C. He also obtained the date of birth certificate of the victim from Government Primary School Kotranka and found that the victim was only 8 years old. Subsequently the Investigating Officer also got the statement of the victim and the complainant recorded under Section 164 Cr.P.C. The investigating officer completed the investigation and found the offences under Section 354-A/341 RPC and Section 9 of the POCSO established against the appellant and accordingly presented the final report in the Court on 02.08.2018.

5. The trial Court took cognizance of the complaint and after hearing the prosecution and the defence framed charges under Section 354-A, 341 RPC and Section 9 of the POCSO vide its order dated 10.08.2018.

6. As is apparent from perusal of order dated 10.08.2018, the charge was framed primarily on the basis that the evidence collected by the prosecution which prima facie established that the appellant had inappropriately touched the breast of the minor and, therefore, committed offence under Section 354-A of the RPC. The trial Court was also of the opinion that the appellant being a teacher and guardian of the minor during school hours had also prima facie committed offence under Section 9 of the POCSO.

7. Be that as it may, after framing of the charge, the trial Court called upon the prosecution to commence its evidence. The prosecution examined seven out of eig