The court ruled that without competent witness testimony and clear evidence, a presumption of guilt under the POCSO Act cannot be upheld, emphasizing the necessity of foundational facts for conviction.

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE SHAILENDRA SINGH)

Date : 22-07-2025

Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

2. This criminal appeal has been filed by the appellant, Ajay Kumar Sah @ Ajay Kumar, against the judgment of conviction dated 21.12.2022 and the order of sentence dated 23.12.2022 passed by the learned Exclusive Special Court (POCSO Act)-cum-7th Additional District and Sessions Judge, Bhagalpur, in POCSO Case No. 41/2020, arising out of Kotwali (Tilkamanjhi) P.S. Case No. 211/2020. By this judgment, the learned trial court has convicted the appellant for the offences punishable under Section 376 of the Indian Penal Code (in short ‘IPC’) and under Section 5 (m)/6 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’). By the order of sentence dated 23.12.2022, the appellant has been sentenced to undergo rigorous imprisonment for 20 years, with a fine of Rs. 50,000/- (Rupees Fifty Thousand) under (m)/6 of the POCSO Act. In default of payment of the fine, he has been directed to undergo simple imprisonment for one additional year. The appellant has not been awarded punishment under Section 376 of the IPC in light of the provision of Section 42 of the POCSO Act.

3. The respondent No. 2, who happens to be the mother of the victim, has not appeared before this Court in this appeal, despite notices having been served upon her.

Prosecution Story:-

4. The substance of the prosecution story is as follows:

As per the informant, on 22.03.2020, at around 7:30 P.M., the appellant, a distant relative of him, came to his house in a drunken state and took his 4-year-old daughter with him on the pretext of giving her chocolate. After 20-30 minutes, he returned with the daughter and immediately left for his (appellant’s) house, leaving the child behind. His daughter was trembling, unable to walk properly, and stumbling. Then she started crying loudly after hugging her mother, who consoled her, and then his daughter informed them that the appellant had attempted to commit an indecent act with her private parts. The victim pointed to her private part while describing the incident. According to the informant, his daughter was in severe pain at that time, which caused him great distress. He immediately informed his family members about the incident. Subsequently, he, along with his family members, went to the appellant’s house, but it was found locked from the inside. When neighbours arrived and began calling the appellant, he went upstair on the roof of his house, started abusing them, and threw bricks and stones, injuring the informant’s brother on the ankle of his left leg.

5. Based on the above prosecution story, the informant filed a written application (Ext.-P-3) at Kotwali (Tilkamanjhi) Police Station. This led to the formal registration of FIR bearing P.S. Case No. 211 of 2020 under Sections 363, 376, 354-A, 511, 337, and 504 of the IPC, under Section 8 of the POCSO Act, and under Section 37(c) of the Bihar Prohibition and Excise Act (in short ‘Excise Act’), which set the criminal law into motion.

6. During the course of investigation, the statements of the victim and her mother were recorded under Sections 161 and 164 of the Code of Criminal Procedure ( in short ‘Cr.P.C.).

7. Upon completion of the investigation, the police submitted a charge sheet against the appellant for the offences under Sections 363, 376, 337, and 504 of the IPC, also under Sections 4/6 of the POCSO Act, and under Section 37(c) of the Excise Act.

8. The learned trial court took cognizance of the same offences under which the appellant was charge-sheeted, except the offence under Section 37(c) of the Excise Act.

9. The app