The judgment establishes the importance of corroborative evidence, the presumption of guilt under the POCSO Act, and the standard of proof required for the accused to prove innocence in cases of sexual offenses against children.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. Instant appeal has been preferred against the judgment and order dated 20.12.2016, passed in Special Session Trial No. 14 of 2016, State vs. Deewan Singh @ Kalu, by the court of Special Judge/Session Judge, Tehri Garhwal. By the impugned judgment and order, the appellant has been convicted under Section 377 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”) and sentenced as hereunder:

“(i) Under Section 377 IPC, rigorous imprisonment for ten years and a fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for a further period of three months.

(ii) Under Section 6 of the POCSO Act, rigorous imprisonment for ten years and a fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for a further period of three months.”

2. Prosecution case, as emerged from the evidence, briefly stated, is as hereunder:

On 23.01.2016, the appellant enticed the victim, a baby boy of three years and took him in his room. The appellant there had anal intercourse against the order of the nature with the victim. The victim cried. PW-3 Geeta Devi heard the cries of the victim. She informed about it to the mother of the victim. PW-4 the mother of the victim reached at the house of the appellant. She found that in a room, the victim was crying and there was blood on his pyjamas. The victim narrated the incident to his mother. The victim was taken to the hospital. He was referred to the District Hospital, where he was treated upon. When the condition of the victim slightly improved, a report of the incident was lodged on 27.01.2016, by his father. Based on it, a Case Crime No. 01 of 2016, under Section 377 IPC and Section 5 (m) read with Section 6 of the POCSO Act was lodged against the appellant. Investigation was carried out. The Investigating Officer prepared the site plan; took into custody the pyjamas of the victim and forwarded it for forensic examination. After completion of the investigation, charge-sheet was submitted against the appellant under Section 377 IPC and Section 5 (m) read with Section 6 of the POCSO Act.

3. On 11.03.2016, charge under Section 377 IPC and Section 5 (m) read with Section 6 of the Act was framed against the appellant. To which, he denied and claimed trial.

4. In order to prove the case, prosecution examined as many as eight witnesses, namely, PW-1 the father of the victim, PW-2 the victim himself, PW-3 Smt. Geeta Devi, PW-4 the mother of the victim, PW-5 Dr. Mahesh Khetan, PW-6 Dr. Dileep Ji Sahai, PW-7 Sachin Kumar Pathak and PW-8 Mohd. Akram Ansari, the Investigating Officer.

5. After prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). According to the appellant, he has been falsely implicated. He is innocent. He has not committed any offence. He has been wrongly arrested.

6. By the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, instant appeal is preferred.

7. Learned Amicus Curiae would argue that there are contradictions in the statements of the witnesses and other infirmities, which doubts the prosecution case. He raised the following points in his arguments:

(i) The statement of the victim is not reliable, because when examined under Section 164 of the Code on 28.01.2016, the victim was not able to understand Hindi and his statement was recorded with the help of his mother. But, when examined in the court, on 22.07.2016, his statement has been recorded in Hindi. It is argued that the victim was not able to understand Hindi, in the month of January 2016, it becomes doubtful that he may be able to give evidence in Hindi in the month of July in the same year.

(ii) FIR is delayed. The alleged incident took place on 23.01.2016, but the FIR has been lodged on 26.01.2016.

(iii) The presence of independent witnesses has been accepted by PW-1 the father of the vict