The court affirmed that conviction under the POCSO Act can rely solely on the victim's testimony, and established the presumption of culpable mental state, placing the burden of proof on the defense.

JUDGMENT :

S. DATTA PURKAYASTHA, J.

Heard Mr. P. Majumder, learned Legal Aid Counsel appearing for the appellant and Mr. Rajib Saha, learned Addl. P.P. appearing for the respondent.

[2] The appeal arises from the judgment dated 12.12.2023, passed by the Learned Special Judge (POCSO), Gomati District, Udaipur in Case No. Special 15 of 2022(POCSO), whereby the appellant was convicted under Section 8 of the Protection of Children from Sexual Offences Act (for short, POCSO Act) along with Section 354 of the Indian Penal Code (for short, IPC ), however, he was only sentenced under Section 8 of the POCSO Act to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/- and in default to pay fine to suffer further rigorous imprisonment for one month.

[3] The gravamen in the FIR lodged by the mother of the victim (PW-1), was that on 08.11.2022, the appellant, who was working in the house of one, Biswajit Sarkar, at around 9.30 a.m. proposed the victim aged about 12 years, to have chips and also gave certain ill suggestions too. At around 4.30 p.m. on the same day, getting her alone at the northern bank of Fatik Sagar, the accused again gave certain ill proposals and also put his hand on her breast. Later on that night at around 10 p.m., the matter was informed to her by her daughter. On the following day, the appellant was detained in an intoxicated condition by the locals and was interrogated about the said allegations but he could not give proper reply. Then the FIR was lodged on 09.11.2022, at around 16.15 hours at Birganj Police Station and the police authority registered the same as Birganj PS Case No. 63 of 2022 under Section 354 of the IPC and Section 8 of the POCSO Act which ultimately led to the filing of chargesheet by the investigating officer under above said provisions of law.

[4] Learned Special Judge framed the charges under above said two provisions, to which the appellant denied the allegations. The prosecution, thereafter, examined total 8 witnesses, and ultimately, the verdict came in the form of conviction as indicated above.

[5] Mr. Majumder, learned Legal Aid Counsel, firstly submits that the requisite intention of the appellant to commit the crime as envisaged in Section 7 of the POCSO Act was not proved. Secondly, the age of the victim was also not proved satisfactorily into evidence to attract any provision of the POCSO Act. According to him, PW-2, the medical officer who proved the birth certificate of the victim did not identify the signature of the issuing authority of that certificate. Furthermore, such birth certificate was issued based on the information received from the concerned hospital authority but the record of hospital authority was also not produced. Learned Legal Aid Counsel further submits that there has been exaggeration in the evidence of both the victim and her mother. The mother also did not give consent to go for medical examination of the victim which creates further doubt in the veracity of the case. Learned Legal Aid Counsel also tries to show certain improvement of the victim made in the witness box with reference to her previous statement recorded under Section 164 Cr.P.C to the effect that in the previous statement, she stated that she was embraced from the back side, whereas, before the Court, she stated that the appellant had touched her breast which impliedly means, such touch was from the front side. Last point as raised by learned Legal Aid Counsel is that there was also unexplained delay in lodging the FIR.

[6] Mr. Saha, learned Addl. P.P., submits that the evidence of PW-1 and PW-3 are very much cogent, trustworthy and reliable and therefore, the learned Trial Court committed no error in convicting the appellant in this case. Moreover, there was no explanation from the side of appellant during his examination under Section 313 Cr.P.C as to why he was booked in this case, and such circumstances goes against the appellant himself. Learned Addl. P.P. also submits that i