The court upheld the conviction for aggravated sexual assault under the POCSO Act, emphasizing the sufficiency of evidence despite procedural claims of the defence.

JUDGMENT :

1. This appeal is directed against the judgment of conviction and the order of sentence, each dated 07.06.2024 passed by the Fast Track Court for POCSO Cases, Srinagar (for short "the trial court”), whereby the appellant has been convicted for the commission of offence under section 10 of Protection of Child from Sexual Offences Act (for short "the POCSO Act‟) and sentenced to undergo simple imprisonment of seven years along with fine of Rs.25,000/-. In case of default in payment of fine, he has been directed to undergo further imprisonment for six months.

2. Mr. Wajid Mohammad Haseeb, learned counsel appearing for the appellant has raised the following issues:

(i) That there is unexplained delay in lodging of FIR and the same makes prosecution case doubtful.

(ii) That the appellant was charged for an attempt to commit an offence of sexual assault and once he was charged for attempt to commit an offence, he could not have been convicted for commission of substantive offence.

(iii) That there are material contradictions in the evidence led by the prosecution, but the learned trial court has ignored the same while convicting the appellant.

(iv) That the age of minor victim has not been proved in accordance with law because date of birth was entered in the school record on the basis of aadhar card.

He has relied upon the judgments of the Hon‟ble Supreme Court of India in "Ghulam Hassan Beigh v. Mohd. Maqbool Magrey ‟, (2022) 12 SCC 657, "Rai Sandeep alias Deepu v. State (NCT) of Delhi‟ 2012 Cr.L.J 4119 and "P. Yuvaprakash v. State ‟ 2023 Live Law (SC) 538 . He has also placed reliance upon the judgment of the Coordinate Bench of this Court in "Hardev Singh v. UT of J&K & Anr.‟2022(3) JKJ 161 (HC).

3. Per Contra, Mr. Alla-Ud-Din Ganai, learned AAG has argued that the prosecution had proved the case to the hilt against the appellant and that is why the learned trial court has convicted and sentenced the appellant and contradictions, if any, are minor in nature having no material and substantial effect upon the prosecution case. He has further argued that as the victim was a minor child, some contradictions are bound to occur in his testimony. He has vehemently submitted that in fact the accused had not attempted to commit an offence and rather had committed an offence within the meaning of section-10 of the POCSO Act, therefore, there is no illegality in the judgment of the conviction recorded by the learned trial court. He has further argued that the evidence of the minor victim has been corroborated by other students of the same Madrasa, as such, there is no infirmity in the judgment passed by the learned trial court. He laid much stress that in view of the applicability of section-29 of the POCSO Act which provided for the presumption on the part of the accused to have committed an offence under the POCSO Act, the appellant has been rightly convicted by the learned trial court, as the appellant miserably failed to rebut the presumption by leading any cogent evidence in rebuttal to the evidence led by the prosecution. He has also submitted that the defence witnesses examined by the appellant have not been able to belie the case projected by the prosecution.

4. Heard and perused the record.

5. Proescution case:

The case projected by the prosecution is that on 12.11.2021 a written application (EXT-P1) was submitted by PW-1, who happens to be the father of minor victim, stating therein that he has been a resident of Niyadi Koot Kalaroos, Kupwara and his son namely Master X was a student of Al-Falah Habibullah Educational Trust, Rangpora. He came to know that some wrong had been committed with his son. After reaching the institution, he came to know, that the person who tried to do wrong with his son was Shabir Ahmad Naik a resident of Ramban. The accused had absconded when he reached the institution. He requested the concerned SHO to do justice. On receipt of this application, FIR bearing No. 107/2021 was registered for commission o