JUDGMENT : BIBEK CHAUDHURI, J. 1. Judgment of conviction and order of sentence passed in Special Case No.17 of 2015/ Sessions Trial No.17 of 2015 passed by the learned Special Judge (POCSO), Andaman and Nicobar Islands, Port Blair under section 6 of the Protection of Children from Sexual Offences Act, 2012 is under challenge in the instant appeal. 2. That on 13.01.2015, the victim/prosecutrix made a statement before the On-duty police personnel at Kishori Nagar, Primary Health Centre stating, inter alia, that on the date of making such statement, she was a student of class eighth in Government Middle School, Paschim Sagar within Kalighat P.S. One Swapan Mondal, the husband of her elder sister Purnima Mondal came to their house one day about five months before the date of lodging the complaint and told her that he was going for fishing in the sea and requested her to stay with her elder sister in his house. The prosecutrix stayed with her elder sister during the said night. The accused Swapan Mondal returned home in a drunken condition late at night and forcefully committed rape upon her. Her elder sister objected to such act of her husband but the offender assaulted her and threatened both of them with dire consequences. After the said incident, the abovenamed offender committed aggravated penetrative sexual assault upon the prosecutirx for several times threatening her of dire consequence. As a result, she became pregnant. On 13.01.2015, she went to Kishorinagar Primary Health Centre for medical check up with her elder brother-in-law Kausik Sarkar. The doctor diagnosed her and informed that the prosecutrix was pregnant for five months. On being asked, she disclosed the incident to her mother. On the basis of the said statement made by the prosecutirx, police registered Kalighat P.S. Case No.5 of 2015 dated 30.01.2015 under section 376(2)(i)/506 of the Indian Penal Code and sections 5/6 of the POCSO Act, 2012. 3. The investigation of the above numbered P.S.Case ended with filing of charge sheet against the accused/appellant Swapan Mondal. Since the case was exclusively triable by the Special Court under the POCSO Act, it was committed to the Court of learned Special Judge, POCSO, Andaman and Nicobar Islands at Port Blair for trial. 4. The learned Trial Judge framed charge against the appellant under section 5(j)(ii)(l)(n) /6 of the POCSO Act, 2012 against the accused/appellant. Since the case was exclusively triable by the Special Court under the POCSO Act, it was committed to the Court of learned Special Judge, POCSO, Andaman and Nicobar Islands at Port Blair for trial. 4. The learned Trial Judge framed charge against the appellant under section 5(j)(ii)(l)(n) /6 of the POCSO Act, 2012 against the accused/appellant. When the charge was read over and explained to him, he pleaded not guilty. Therefore, trial of the case commenced. 5. In order to prove the charge against the accused, the prosecution examined in all ten witnesses. Series of documents were marked as exhibits which we propose to refer subsequently in the body of the judgment. 6. The learned Trial Judge, upon consideration of the evidence on record, found the accused Swapan Mondal guilty for committing offence under section 5(n) of the POCSO Act. Accordingly, he was convicted and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/-, in default further simple imprisonment for six months for the offence punishable under section 6 of the POSCO Act. 7. The aforesaid judgment and order of conviction is assailed in the instant appeal. 8. During trial, the defacto complainant deposed as PW-1. She stated in her evidence that about five months before she was medically treated at Kishori Nagar Primary Heath Centre, the appellant committed rape upon her in his house at night forcibly. At the time of committing rape, her elder sister Purnima was sitting outside the room. She also stated that her brother-in-law committed rape upon her on several occasions. However, she could not say the dates of commission of such offence. 9. It is found from the evidence of the mother of the prosecutrix (PW-1) that one day, she took her youngest daughter to the Primary Health Centre as she was suffering from fever. After examination, the Doctor told her that her daughter was pregnant. On being asked, she came to know from her daughter that the appellant was responsible for causing pregnancy of her daughter. She also stated that the victim gave birth to a female child about five months before her date of examination. PW-3 Basudev Banerjee is the father of the prosecutirx. He corroborated the statement of PW-1 in his evidence. 10. PW-4, Smt. Purnima Mondal is the wife of the appellant. She also stated that the victim gave birth to a female child about five months before her date of examination. PW-3 Basudev Banerjee is the father of the prosecutirx. He corroborated the statement of PW-1 in his evidence. 10. PW-4, Smt. Purnima Mondal is the wife of the appellant. She does not support the prosecution case and stated during her examination-in-chief that she was ignorant about the fact as to whether her husband committed aggravated penetrative sexual assault or not. The prosecution declared PW-4 hostile. PW-5 Dr. Falicitus was posted at Kishori Nagar on 30.01.2015. It is stated by him on oath that he medically examined the victim on 30.01.2015 and found that she was pregnant for five months. The medical examination report prepared by PW-5 was marked as Exhibit -3 during the trial of the case. PW-6 C.G.Kindo was the Head Constable on Kalighat P.S at the relevant point of time. It is found from his evidence that one Usin Kerketta (PW-7) recorded the statement of the victim at Kishori Nagar, Primary Health Centre and forwarded the same to Kalighat P.S. On the basis of the said statement, PW-6 registered Kalighat P.S.Case No.5 of 2015. He has proved the formal FIR which was marked as Exhibit -4 during trial. PW-8 Dr. Nitai Mondal medically examined the appellant. The medical examination report of the appellant is marked as Exhibit-5. PW-10 Shabana Haneef is the Investigating Officer of the case who on conclusion of investigation submitted charge sheet against the accused/appellant. 11. The learned Special Judge held the accused guilty for committing offence under section 5(n) of the POCSO Act solely on the basis of the statement made by the victim initially before the police which was treated to be the complaint made by her and her statement recorded under section 164 of the Code of Criminal Procedure. He was also of the opinion that ocular evidence of the victim will prevail over any scientific examination report because such scientific examination report is in the nature of corroborative evidence. It is held by the learned Special Judge that if the evidence of prosecutrix is cogent, trustworthy and reliable, conviction can be passed only on solitary evidence of the victim. In such case, scientific examination report is not necessary. 12. Mr. It is held by the learned Special Judge that if the evidence of prosecutrix is cogent, trustworthy and reliable, conviction can be passed only on solitary evidence of the victim. In such case, scientific examination report is not necessary. 12. Mr. D.Ilango, learned advocate for the appellant while admitting the legal principle as regards evidentiary value of prosecutrix in a case of aggravated penetrative sexual assault and admits that the accused can be convicted on the basis of the solitary evidence of prosecturix, it is vehemently urged by him that in criminal trial, is it not number of witness that counts but the quality of evidence that weighs. He further submits that the conviction on the basis of lone testimony of the victim is sustainable, provided her evidence is cogent, reliable, trustworthy, free from any contradiction and unblemished. Whenever there is contradiction in the evidence of the victim as regards commission of offence or the circumstances under which the offence committed, the Court look for corroboration and the accused can be held guilty on the basis of such evidence of the victim. 13. Coming to the instant case, it is submitted by Mr. D.Ilango that the victim gave three different counts of the alleged incident. First in her compliant, she stated that about five months before the date of making the statement, accused Swapan Mondal came to her house and told her to stay with her elder sister in his house because he had to go to the sea for fishing at night. The victim therefore stayed in her elder sister in the house of Swapan Mondal. Swapan Mondal returned to his house in a drunken condition and committed rape upon her. Her elder sister tried to resist Swapan but he assaulted her and threatened both of them with dire consequences. Subsequently also she cohabited with him under threat. As a result, she became pregnant and on the date of her examination, i.e. 30.01.2015 she was five months pregnant. 14. Mr. Ilango then refers to the statement of the victim recorded under section 164 of the Code of Criminal Procedure on 06.02.2015 where she stated that she had love relationship with her brother-in-law. Her brother-in-law proposed her to marry and she accepted such proposal. Thereafter she had physical relationship with her brother-in-law for long about a year and for that she became pregnant. Her brother-in-law proposed her to marry and she accepted such proposal. Thereafter she had physical relationship with her brother-in-law for long about a year and for that she became pregnant. She also stated in her 164 statement that her brother-in-law is innocent. Out of fear, she stated to police that her brother-in-law raped her. 15. Mr. Ilango, then refers to evidence of PW-1 who is the mother of the victim. It is found from her evidence that the victim stated to her that the appellant committed rape upon her only on one occasion when she was staying at his house with her elder sister. 16. Referring to the above contradictions, it is submitted by the learned advocate for the appellant that when the victim had narrated different counts of the incident at different points of time, none of her statement should be believed and the learned Trial Judge has committed grave error in holding the accused guilty for committing offence under section 5(n) of the POCSO Act and on the basis of such contradictory statements made by the victim during investigation of the accused. 17. It is further submitted by Mr. Ilango that according to PW-5 Dr. Falicitus who medically treated the victim on 30.01.2015, she was pregnant for five months. Therefore, it is expected for the victim to give birth of a baby after 280 days and if the expected date of delivery is counted, the date of delivery of the victim would have been some time in the month of June 2015. But the victim gave birth to her baby on 28th July, 2015. 18. If that be so, the learned Trial Judge was wrong in holding that the victim was sexually assaulted about five months before 30.01.2015 and if the date of conception as a result of cohabitation is counted from the date of delivery of the child by the victim, the Court ought to have come to an irresistible conclusion that she was not ravished by the accused on the date of alleged occurrence and the entire prosecution story is false and concocted. 19. It is also pointed out by Mr. Ilango that coupled with the aforesaid lacuna in prosecution case, the victim refused to give blood samples for DNA profile test for ascertainment of paternity of her baby. Thus, according to Mr. 19. It is also pointed out by Mr. Ilango that coupled with the aforesaid lacuna in prosecution case, the victim refused to give blood samples for DNA profile test for ascertainment of paternity of her baby. Thus, according to Mr. Ilango, learned Trial Judge committed grave error in holding the accused guilty for committing such offence and he should be honourably acquitted from the charge. 20. Ms. A.S.Zinu, learned advocate for the State respondent, on the other hand, submits that the accused is the husband of the elder sister of the victim girl. It is submitted by her that she cannot argue beyond the record and cannot disagree that the victim had given different counts of story on different points of time. But one part of the story is consistent that the victim all through pointed out the accused/appellant is the perpetrator of the offence. The victim was aged about 15 years at the relevant point of time. Even assuming that the victim had some sort of infatuation for her brother-in-law, the accused could not take advantage of her weakness and commit sexual intercourse with her. Even if the story narrated by the victim in her statement recorded under section 164 of the Code of Criminal Procedure is believed, the victim being minor, her consent in cohabiting with the accused is of no consequence. The victim never took the name of any person other than the accused as perpetrator of the offence. Therefore, sole testimony of the victim was considered by the learned Trial Judge and the learned Court below did not commit any error in holding the appellant guilty for committing offence under section 5(n) of the POCSO Act on the basis of the evidence on record. 21. It is further submitted by Ms. Zinu that the DNA profile test is of late considered to be most reliable and trustworthy evidence due to the advantage of the science and technology. But absence of DNA profile test in a case does not entitle the accused to be acquitted from the charge of sexual assault. Thus, she supports the impugned judgment passed by the learned Special Judge in Sessions Trial No.17 of 2015. 22. But absence of DNA profile test in a case does not entitle the accused to be acquitted from the charge of sexual assault. Thus, she supports the impugned judgment passed by the learned Special Judge in Sessions Trial No.17 of 2015. 22. In a very recent decision in the case of Santosh Prasad @ Santosh Kumar vs The State Of Bihar, reported in (2020)3 SCC 443 the Hon’ble Supreme Court considered the question as to whether a conviction can solely be based on the evidence of prosecutrix even as per the FSL report, of the blood and semen on the petticoat are said to be inconclusive. The Hon’ble Supreme Court in para 6 of the judgment observed :- “6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O’clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5 -prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix – PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt. 23. In the case of Raju v. State of Madhya Pradesh reported in (2008) 15 SCC 133 , it is observed and held by the Supreme Court in paragraphs 11 and 12 as under :- 11."It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration." 12. Reference has been made in Gurmit Singh's case reported in 1996 (2) SCC 384 ; 1996 SCC Crl.316 to the amendments in 1983 to Sections 375 and 376 of the Indian Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined. 24. In the subsequent decision of the Hon’ble Supreme Court in the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi, reported in (2012) 8 SCC 21 , the Hon’ble Supreme Court had the occasion to consider who can be said to be “sterling witnesses”. It is observed and held as under:- 22. "In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." 25. In case of Krishan Kumar Malik v. State of Haryana reported in 2011(7) SCC 130 , it is observed and held that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 26. We are not unmindful to note that section 114 A of the Evidence Act introduced by way of amending Act of 2013 lays down a rule of presumption as to absence of consent in certain prosecution case for rape. 26. We are not unmindful to note that section 114 A of the Evidence Act introduced by way of amending Act of 2013 lays down a rule of presumption as to absence of consent in certain prosecution case for rape. Section 29 of POCSO Act lays down special provision relating to presumption which reads thus – “29. Presumption as to certain offences: -where person is prosecuted for committing or abetting or attempting to commit any offence under section 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.” 27. The words appearing in Section 29 of the POCSO Act "Where a person is prosecuted…" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross-examination by defence. When a different story is developed during trial by the victim prosecutrix, contrary to the story of prosecution, and that developed story received ratification from the near relatives of the victim prosecutrix, in the given facts situation, it stands to reasons that despite having been provided with sufficient opportunity to prove the case, prosecution failed to establish incident complained of in the F.I.R. 28. The concept of reverse burden of proof can only be made applicable in a case, where prosecution has already led substantial evidence, as regards the offence complained of. There is hardly any scope for direct application of Section 29 of the POCSO Act, even in a case where there is no foundational evidence being led by the prosecution. 29. The issue was addressed by the Division Bench of this court in the case of Subrata Biswas & Anr. Vs. The State reported in (2019) 3 Crl.(Cal) 331, where the ratio decided was that proof of penetrative sexual assault is sine qua non prior to making application of the presumption available under Section 29 of the POCSO Act. 30. This being the legal position, the initial burden of the prosecution is to prove the foundational fact of the case by adducing cogent, trustworthy and reliable evidence. 30. This being the legal position, the initial burden of the prosecution is to prove the foundational fact of the case by adducing cogent, trustworthy and reliable evidence. Section 29 has got no direct and automatic application irrespective of the standard of evidence adduced in a particular case. Thus without proof of foundational evidence in a case under the POCSO Act, the onus to prove the reverse burden of proof does not come into operation. The statutory presumption therefore cannot be taken to be absolute. 31. The Protection of Children from Sexual Offences Act was enacted as a Special Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of special courts for trial of such offences and that matters connected therewith or incidental thereto. The said Act is enacted to establish the constitutional mandate under Article 15(3) of the Constitution. The object of the act clearly states that for the proper development of the child, it is necessary that his or her right to privacy and confidentiality be protected and restricted by every person by all means and through all stages of a judicial process involving the child. Therefore, in addition to the penal provision contained in Section 375 and 376 of the Indian Penal Code, this Act is enacted for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding interest and wellbeing of the child at every stage of judicial process. 32. We have already addressed the issue of presumption as to certain offences contained in Section 29 of the said Act and come to such finding that foundational fact of the offence is required to be proved by the prosecution beyond all reasonable doubt and only then presumption under Section 29 is available. In the instant case it is repeatedly urged by the learned Counsel for the defence that there are discrepancies in the statement of the victim girl and her mother while the victim girl stated that the accused on various occasions cohabited with her, her mother testified that the incident in hand is the solitary incident. In the instant case it is repeatedly urged by the learned Counsel for the defence that there are discrepancies in the statement of the victim girl and her mother while the victim girl stated that the accused on various occasions cohabited with her, her mother testified that the incident in hand is the solitary incident. It is also argued by him that since the prosecution has alleged that the victim gave birth to a baby as a result of aggravated sexual assault allegedly committed upon her by the husband of her elder sister, the same could have been easily proved by DNA profile test. However, the petitioner refused to have DNA test of herself and her baby. Such denial goes to suggest that the appellant is not responsible for aggravated sexual assault upon the victim as alleged by the prosecution. 33. We have given anxious thought over the matter. We are of the view that this is not a case of establishment of paternity of a child. This is a case where the de facto complainant has alleged that her minor daughter was sexually assaulted by the husband of her elder sister. It is important to note that the elder sister of the victim did not support the prosecution case and was declared hostile during the trial of the case. The victim girl refused to have DNA test of her baby done obviously on the ground that she does not want to destroy the family of her elder sister. This is not a uncommon fact that many of the incidents of sexual assault, indecent proposal, unwanted outraging modesty of minor girls by close family members are not reported in order to suppress possible humiliation of the offenders within the same family. In the instant case the victim girl obviously does not want to destroy the family of her elder sister. Therefore, she refused to have DNA test of her baby, which may be used as clinching evidence against the accused. 34. At this stage the question that needs to be adjudicated upon is as to whether the prosecution case ought to be thrown away due to the victim’s refusal to have DNA test done. 35. In Vijay @ Chinee Vs. State of Madhya Pradesh reported in (2010 ) 8 SCC 191, it is observed in Paragraph 9 to 14 as hereunder: 9. In State of Maharashtra Vs. 35. In Vijay @ Chinee Vs. State of Madhya Pradesh reported in (2010 ) 8 SCC 191, it is observed in Paragraph 9 to 14 as hereunder: 9. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658 , this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC P-556, para 16) “16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.” 10. In State of U.P. Vs. Pappu @ Yunus & Anr. AIR 2005 SC 1248 , this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p.597, para 12) “12. it is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.” 11. In State of Punjab Vs. Gurmit Singh : AIR 1996 SC 1393 , this Court held that in cases involving sexual harassment, molestation etc. Assurance, short of corroboration as understood in the context of an accomplice, would do.” 11. In State of Punjab Vs. Gurmit Singh : AIR 1996 SC 1393 , this Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under : (SCC pp. 394-96 & 403, paras 8 & 21) “8….The Court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix….The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case…. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case…. Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury….Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances… 21…. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 12. In State of Orissa Vs. Thakara Besra & Anr. AIR 2002 SC 1963 , this Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 13. In State of Himachal Pradesh Vs. Raghubir Singh (1993) 2 SCC 622 , this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. 13. In State of Himachal Pradesh Vs. Raghubir Singh (1993) 2 SCC 622 , this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan Vs. State of Madhya Pradesh (2010) 2 SCC 9 , placing reliance on earlier judgment in Rameshwar Vs. State of Rajasthan. 14. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. 36. In the case of Krishan Kumar Malik Vs. State of Haryana reported in (2011) 7 SCC 130 , it is observed and held by this Court that to hold an accused guilty for commission of offence of rape, solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. We have already recorded the observation made by the Hon’ble Supreme Court in the case of Rai Sandeep @ Deepu (supra) on the point as to who can be said to be a sterling witness. 37. On evaluating the deposition of the victim girl (P.W.2) independently by us, we find her evidence consistent with the allegation made against the accused. At the time of medical examination, the victim was found to be a five months pregnant. The evidence of the victim girl corroborated on all material particulars with her statement made before the police officer on the basis of which the case against the petitioner was initiated. In her statement recorded under Section 164 of the Code the victim narrated that she was sexually abused more than once by the accused. She successfully withstood the test of grueling cross-examination by the defence. Her evidence was corroborated by her parents. 38. In her statement recorded under Section 164 of the Code the victim narrated that she was sexually abused more than once by the accused. She successfully withstood the test of grueling cross-examination by the defence. Her evidence was corroborated by her parents. 38. The parents of the victim girl know the fact that if the accused is held guilty for committing an offence of aggravated sexual assault upon her sister-in-law, he would be sentenced to imprisonment and the family life of their another daughter would be at peril. In spite of the said fact they supported the testimony of the victim girl. 39. Considering of such circumstances, we are of the firm view that the order of conviction and sentence passed by the learned Trial Judge cannot be set aside as a result of victim’s denial to have DNA test of her baby done. Contradictions referred to by the learned Counsel for defence on the issue as to whether the victim was sexually assaulted only on one occasion or more than one occasion are not material contradictions and the learned Trial Court rightly overlooked such contradictions. 40. In view of the above discussion, we do not find any reason to interfere with the finding of the learned Trial Judge. 41. Accordingly, the instant appeal fails. However, there shall be no order as to costs. 42. The judgment and order of conviction and sentence passed by the Special Judge (POCSO), Andaman & Nicobar Islands, Port Blair in Special Case No.17 of 2015 under Section 6 of the said Act is affirmed. 43. Since the appellant is on bail, in view of this judgment he is directed to surrender before the Court of Learned Chief Judicial Magistrate, Andaman and Nicobar Islands to suffer sentence within three weeks from the date of this order, failing which, the learned Chief Judicial Magistrate is at liberty to issue warrant of arrest against the appellant. 44. A copy of this judgment shall be readily made available to the appellant by the Member Secretary DLSA, Andaman & Nicobar Islands for availing legal aid assistance. 45. The Member Secretary, DLSA, Andaman and Nicobar Islands is directed to provide all necessary legal assistance to the appellant as presently the appellant is represented by Mr. D. Illango Advocate appointed by DLSA, if the appellant makes such request. Soumen Sen, J.:- 1. 45. The Member Secretary, DLSA, Andaman and Nicobar Islands is directed to provide all necessary legal assistance to the appellant as presently the appellant is represented by Mr. D. Illango Advocate appointed by DLSA, if the appellant makes such request. Soumen Sen, J.:- 1. I have read the judgment of my learned brother Bibek Chowdhury, J. and completely agree with the conclusions arrived at by His Lordship. I, however, only wish to supplement the reasoning of Chowdhury, J. on the interpretation of Sections 29 and 30 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’). 2. Before I refer to Sections 29 and 30 of the POCSO Act, it is essential to consider some of the relevant facts, which have already been elaborately and meticulously discussed by Chowdhury, J. for the sake of comprehensiveness: I. The victim girl was aged about 15 years when the alleged incident occurred. II. The complaint dated January 30, 2015, in short, was that five months ago, one day the victim girl’s brother-in-law (i.e. the accused/the appellant) had requested her to stay in his house as he was going out for fishing and the sister of the victim girl was alone. It was alleged that on that day, the accused had come home in a drunken condition and had forcefully committed a ‘mistake’ with the victim girl. It was further alleged that when the sister of the victim girl opposed, the accused assaulted his wife and threatened both that if the victim girl disclosed his mistake to her parents, the accused would kill both of them. The complaint stated that the victim girl on suffering from fever went to the Kishori Nagar Medical with her mother and elder brother-in-law, where she was diagnosed with a pregnancy of five months that was alleged to have been caused by the ‘mistake’ of the accused, which was committed many times. III. It was on the basis of the said statement made by the victim girl that the police registered Kalighat P.S. Case No. 5 of 2015 dated January 30, 2015, and filed a charge-sheet. III. It was on the basis of the said statement made by the victim girl that the police registered Kalighat P.S. Case No. 5 of 2015 dated January 30, 2015, and filed a charge-sheet. In the charge-sheet, being no.9 of 2015, dated April 14, 2015, it is stated that according to the fard bayan of the victim girl, the incident of sexual intercourse took place five months before the date of complaint and on the basis of such allegation, charges were framed against the accused under Section 376(2)(1)/506 of the Indian Penal Code, 1860 (in short ‘I.P.C.’) read with Sections 5 and 6 of the POCSO Act. IV. Thereafter, the victim girl was produced before the Chief Judicial Magistrate for recording of her statement under Section 164 of the Code of Criminal Procedure, 1972 (in short ‘Cr.P.C.’) on February 6, 2015. In the said statement, the victim girl stated that it was known to her elder sister that she was in love with the accused. She stated that the accused had proposed marriage to her, and she had accepted the same. She further stated that she had physical relations with him for long, about a year, which led to her pregnancy. She also stated that her brother-in-law was innocent and that she had told her sister that she wished to terminate her pregnancy. Finally, she stated that due to the scare of the police she had alleged that the accused had raped her and that, as such, she had not told anything to her father and mother. V. During the trial, the victim (P.W.-2) deposed, inter alia, that on January 30, 2015 she was raped by the accused person, but immediately thereafter stated that she could not recollect the date of the rape. She identified the accused in court. She stated that as she had been threatened by the accused, out of fear, she did not lodge any complaint. The victim girl stated that five months later, when she was suffering from fever, she was taken to Kishori Nagar Medical by her mother and grandmother, where she was diagnosed by the doctor to be carrying. The victim girl stated that upon being asked by her mother, she had told her about the incident. She stated that the doctor informed the police, who interrogated her and recorded her statement and which was followed by a medical examination. The victim girl stated that upon being asked by her mother, she had told her about the incident. She stated that the doctor informed the police, who interrogated her and recorded her statement and which was followed by a medical examination. She stated that her brother-in-law raped her multiple times even though she could not recollect the dates and that at the time of committing rape her elder sister was sitting outside the room. VI. On cross-examination, she stated that she could not recollect the date she visited her brother-in-law’s house or the date when she went back to her father’s house. She stated that the accused resides within 50 cubits from the house of his neighbours and that his parents lived with him. She stated that out of fear she did not inform her brother-in-law’s parents about the incident of rape. She also stated that it was not a fact that she was made pregnant by another boy. VII. The evidence on record goes to show that the victim all-throughout has contended that the child was born due to sexual intercourse with her brother-in-law. VIII. The mother of the victim (P.W.-1) also in her evidence held her son-in-law responsible for the pregnancy. According to her, the victim went to the house of the accused almost 1 year 1 month ago, that is, around October, 2014 and spent the night in the house of her second married daughter in October, 2014. The distance of the two houses can be covered in 30 minutes. No house was said to be situated near the house of the appellant. IX. However, as could be seen from the evidence of the victim, her accusation against her brother-in-law was not consistent. It varies from an alleged incident of forceful aggravated penetrative sexual assault to a consensual cohabitation on a promise to marry. The statement of the victim girl under Section 164 of the Cr.P.C. at first blush exculpates her brother-in-law of any forceful aggravated sexual assault. The victim has stated in her statement that her earlier accusation of rape by her brother-in-law was made under pressure. She did not immediately inform about such cohabitation after the incident took place due to fear. The sister of the victim girl (P.W.-4) turned hostile during the trial and deposed that she was not aware of any incident with regard to the alleged incident. She did not immediately inform about such cohabitation after the incident took place due to fear. The sister of the victim girl (P.W.-4) turned hostile during the trial and deposed that she was not aware of any incident with regard to the alleged incident. X. Upon cross-examination by the prosecution, the sister of the victim girl denied being threatened by her husband, i.e. the accused and stated that she could not state whether the victim girl became pregnant due to cohabitation with the accused. XI. The father of the victim in his evidence has stated that the victim used to visit his son-in-law’s house. He had come to know from the doctor’s report that her youngest daughter became pregnant and his son-in-law was responsible for such pregnancy. He stated that the accused financially helped him during the marriage of his sons. He has denied that the victim became pregnant by some other person. XII. In the short examination of the accused, he stated that he did not know whether the victim was taken to a doctor due to fever which led to her pregnancy diagnosis. He also stated that he did not know anything about any such incident, upon being asked about the evidence of the victim’s mother (P.W.-1) directly implicating the accused for the pregnancy of the victim girl. The accused stated that the victim girl used to visit his house, but he denied that he raped her and threatened the victim or her sister. He also denied being responsible for the victim’s pregnancy and stated that the allegation that he raped her on many occasions was false. 3. The Trial Court delivered the impugned judgment on August 28, 2019. The Trial Court summarised the evidence of the victim girl, the prosecution witnesses and the evidence of the accused and the materials on record. After recording the arguments, the learned Trial Judge stated that he disbelieved the evidence of the victim’s sister (P.W.-4). He stated that it could be inferred from the statement of the victim under Section 164 of the Cr.P.C. that she was subjected to sexual intercourse when she was below the age of 18, which means consent was immaterial. He then made reference to Sections 29 and 30 of the POCSO Act and stated that he could presume commission of the offence by the accused and the existence of the culpable mental state for it. He then made reference to Sections 29 and 30 of the POCSO Act and stated that he could presume commission of the offence by the accused and the existence of the culpable mental state for it. He found the statement of the victim recorded under Section 164 had remained unchallenged and, therefore, held the accused guilty of the charges against him on account of the accused being unable to rebut the presumption and discharge the reverse burden of proof under Sections 29 and 30. 4. The submissions before us and the authorities advanced in support of those submissions have been dealt with in detail by Chowdhury, J., hence, I shall not repeat them at length, but shall only seek to provide an overview of the submissions for proper appreciation of the legal context. 5. Mr. D. Illango, the learned counsel for the appellant/the accused has submitted that the learned Trial Court at the time of passing the impugned judgment had not considered the fact that the DNA report of the child of the victim girl had not been obtained, although it is mandatory in terms of Section 53-A of the Cr.P.C., after an amendment was introduced on June 23, 2006. According to Mr. Illango, the prosecution has not been able to prove the version of the victim girl and link the incident of the birth of the child with the commission of rape, since no DNA report was brought before the court to prove the case against the accused person. Mr. Illango points out that the wife of the appellant became hostile during the trial. 6. Mr. Illango also states that the child of the victim girl was born on June 28, 2015, whereas the charges framed against the accused person indicates that he had committed the offence in the month of July/August, 2014. The learned counsel submits that if we take into consideration that the offence was last committed in the month of the August, 2014 then the child should have been born by the end of April, 2015. Mr. The learned counsel submits that if we take into consideration that the offence was last committed in the month of the August, 2014 then the child should have been born by the end of April, 2015. Mr. Illango points out that on the day of the examination of the victim girl, the doctor had stated that she was carrying a pregnancy of 20-24 weeks, meaning thereby that she conceived sometime in August 2014, whereas the victim girl last visited the house of the accused person a month before she fell ill, i.e. end of November, 2014 or early December, 2014. This, according to the learned counsel, creates a grave and genuine doubt about the pregnancy being caused by the alleged accused person. It is submitted that this also raises an issue of false implication of the accused. 7. I notice that even at the appellate stage when the prayer for bail of the accused was considered, a Coordinate Bench made the following observation:- “Having heard the learned advocates appearing for the parties and considering the materials on record, we are of the, prima facie, view that refusal of the victim to have samples collected for DNA profiling is a circumstance which would weigh in the mind of the Court while considering the prayer for suspension of sentence. Despite the presumption of innocence not being available to the appellant/applicant after his conviction, we are inclined to grant his prayer considering his conduct before filing of the charge sheet as well as the fact that he is a permanent resident of these islands and has a family to look after. Additionally, the evidence of the wife of the appellant/applicant ought not to escape consideration of this Court. We are conscious that there could be an attempt on her part to shield her husband but sight cannot be lost of the fact that the victim is none else but her own younger sister.” (emphasis supplied) 8. During hearing of the appeal we also passed an order dated February 21, 2021 in order to ascertain the views of the victim regarding the DNA profile of the child. The said order is reproduced below:- “We have heard the learned counsel for the parties. The matter was adjourned earlier in order to enable the prosecution to obtain necessary instruction from the victim with regard to the DNA profiling of the child, the victim and the accused. The said order is reproduced below:- “We have heard the learned counsel for the parties. The matter was adjourned earlier in order to enable the prosecution to obtain necessary instruction from the victim with regard to the DNA profiling of the child, the victim and the accused. The leaned Counsel for the accused agreed to DNA profiling. The learned Special Public Prosecutor submits that contact could not be established with the Investigating officer. The Superintendent of Police, North and Middle Andaman concerned is directed to ensure that on or before the adjourned date, necessary instruction is obtained as to the willingness of the DNA profiling of the victim and the child.” (emphasis supplied) 9. The learned counsel for the prosecution has produced before us the communication received from the victim girl stating that although the authority has explained the necessity of a DNA profile to the victim girl, she has expressed her un-willingness for conduct of such DNA profile of her and her child. 10. The main substance of the prosecution’s case rests on appreciation of evidence in the context of Section 29 and 30 of the POCSO Act. It is submitted that, on their proper construction, the said provisions mean such that the reverse burden of proof cast therein has not been discharged by the accused in the present case. Therefore, it is argued that the court below was right to presume and hold that the relevant actus reus and mens rea of the offences mentioned in Sections 5 of the POCSO Act had been fulfilled on the basis of the victim’s unchallenged statement under Section 164 of the Cr.P.C. and, therefore, the accused was guilty of the offence mentioned in Sections 5. 11. It is in this background that the impugned judgment and order of conviction is required to be assessed. Chowdhury, J. has very meticulously brought out the inconsistencies in the evidence of the witnesses and the victim girl, I shall not endeavour to do the same, save as already indicated by my observations above. However, I would like to give my views on the reverse burden of proof. 12. The POCSO Act is a special statute. Chowdhury, J. has very meticulously brought out the inconsistencies in the evidence of the witnesses and the victim girl, I shall not endeavour to do the same, save as already indicated by my observations above. However, I would like to give my views on the reverse burden of proof. 12. The POCSO Act is a special statute. In view of the fact that the child is in a vulnerable position and is required to be protected from offences of sexual assault, sexual harassment, etc., the Anglo-Saxon jurisprudential presumption of innocence is replaced by a presumption of commission or abatement or attempt to commit an offence under Sections 3, 5, 7 and 9 of the POCSO Act “unless the contrary is proved” by Section 29 of the POCSO Act. 13. Similarly, Section 30 states that the Special Court shall presume that the accused had the requisite “culpable mental state” to commit an offence under the POCSO Act when prosecuted for an offence requiring such a mental state under the said Act. However, Section 30 allows the accused to take a defence by proving the fact that he had no such mental state with respect to the act charged as an offence under the POCSO Act. The explanation to Section 30 states that “culpable mental state” includes intention, motive, knowledge of a fact and the belief in or reason to believe a fact. 14. Sections 29 and 30, for the sake of convenience, are reproduced below: ‘29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.” 30. Presumption of culpable mental state.— (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation.—In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.’ 15. A presumption is a legal inference or assumption that a fact or legal outcome exists based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production of evidence or persuasion to the opposing party, who can then attempt to overcome the presumption. In other words, it reverses the burden of proof. The strength or weakness of a particular presumption of fact or of law depends on the circumstances and the presence or absence of an alternative explanation. 16. There are a few statutes which create a reverse burden of proof. The relevant section in such statutes clearly presumes the existence of certain facts which the accused has to rebut – it proceeds on the basis that if a particular state of facts exists then it is on the accused to prove the existence of such facts as improbable or not existing at all. To illustrate we may refer to Section 138 of the Negotiable Instrument Act, 1881. The object of the said provision was held as being both punitive as well as compensatory. The offence was discussed as a regulatory offence and the burden of proof was on the accused in view of the presumption under Section 139 and the standard of proof was on a preponderance of probabilities: M/s. Meters and Instruments Pvt. Ltd. & Anr. v. Kanchan Mehta, reported in A.I.R. 2017 S.C. 4594, at paragraph 18 of the report. The presumption has to be made that every negotiable instrument was made or drawn for consideration and it was executed for discharge of debt or liability, once the execution of the negotiable instrument is either prove or admitted. Unless the contrary is proved, the presumption has to be made that the holder of a negotiable instrument is the holder in due course. (See. Unless the contrary is proved, the presumption has to be made that the holder of a negotiable instrument is the holder in due course. (See. Laxmi Dyechem v. State of Gujarat, reported in 2012 (13) SCC 375 , at paragraphs 24-25 of the report). 17. Hence, a ‘presumption’ is a probable consequence drawn from the facts as to the truth of a fact alleged and a ‘presumption of fact’ is an inference as to the existence of one fact drawn from other facts (either certain, or proved by direct testimony) as to the truth of the fact alleged: Ramachandran v. State of Kerala, reported in (2009) 73 AIC 730 (Ker), at pp. 732-733 of the report. 18. As already stated, this reverse burden is an exception to the Anglo-Saxon jurisprudential presumption of innocence, which means that the accused is to be presumed to be innocent unless it is proved beyond any reasonable doubt that the accused has committed the offence. In the well-known words of Viscount Sankey, L.C. in Woolmington v. Director of Public Prosecutions, reported in [1935] A.C. 462, at p. 481 of the report: “Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.” 19. In Slater v. H.M. Advocate, reported in 1928 J.C. 94, the Scottish High Court of Justiciary took the opportunity, in the first appeal to come before the Court under the Criminal Appeal (Scotland) Act 1926, to say (at p. 105 of the report) that: “The presumption of innocence applies to every person charged with a criminal offence in precisely the same way, and it can be overcome only by evidence relevant to prove the crime with the commission of which he is charged. The presumption of innocence is fundamental to the whole system of criminal prosecution, and it was a radical error to suggest that the appellant did not have the benefit of it to the same effect as any other accused persons.” 20. Section 29 of the POCSO Act raises a presumption of guilt when a person is prosecuted for commission of offences under Sections 3, 5, 7 and 9 of the said Act. Section 29 of the POCSO Act raises a presumption of guilt when a person is prosecuted for commission of offences under Sections 3, 5, 7 and 9 of the said Act. It is presumed that the said person has- (i) Committed, or (ii) Abetted, or (iii) Attempted to commit the offence, as the case may be. The presumption so raised shall hold good and continue “unless the contrary is proved”. 21. The distinction between shifting the evidential burden of proof and the legal burden of proof from the prosecution to the accused is what Prof. Granville Williams in his celebrated book The Proof of Guilt (3rd edn.) at pp. 185 to 186, described as the “evidential burden” or the “burden of introducing evidence” in support of his case, on the one hand, and the “persuasive burden” or the “burden of persuading” the judge as to his guilt or innocence on the other. 22. The persuasive burden of proof requires the accused to prove, on a balance of probabilities, a fact which is essential to the determination of his guilt or innocence. An evidential burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. 23. The statutory presumption which places an evidential burden on the accused requires the accused to do no more than raise a reasonable doubt on the matter without there being any breach of the presumption of innocence. This principle would apply in relation to the presumption raised in favour of the holder of a cheque under Section 139 of the Negotiable Instruments Act, 1881. 24. The statutory presumption which transfers the persuasive burden to the accused requires examination. They are compatible with the common law evidential presumption and are necessary, in part, for preserving the balance of fairness between the accused and the prosecutor in matters of evidence. 25. Should we look to Section 29 as a mandatory presumption of guilt as to an essential element of the offence? However, to apply such mandatory presumption it is important to ascertain that such presumption is applied if the basis of facts on which it rests is established. 25. Should we look to Section 29 as a mandatory presumption of guilt as to an essential element of the offence? However, to apply such mandatory presumption it is important to ascertain that such presumption is applied if the basis of facts on which it rests is established. In other words irrespective of the nature of the presumption that we may discuss, the prosecution, in order to take advantage of such presumption, has to lay the foundation and the basis of such fact that would automatically raise a presumption of guilt without any further evidence being led to prove the commission of the offence. Without such foundational facts, the edifice is bound to fall and an accused cannot be asked to adduce evidence to prove that he has not committed the offence. It is elementary that he who raises an issue has to first satisfy the court as to the probability or existence of material and or necessary facts and evidence to prove his case. However, in cases where there is a reverse burden of proof the intensity and complexity of the burden of proof the prosecution is required to discharge to prove an offence is largely reduced by reason of a presumption of law in view of the clear language of Section 29 of the POCSO Act. Where an irrefutable presumption of law is applied on proof or admission of a basic fact, another fact will be presumed and the other party is barred from calling any evidence in rebuttal. As shall be discussed, Section 29 makes it clear that proof of a basic fact or foundational fact is necessary for presumption of existence of another fact. 26. In Noor Aga v. State of Punjab reported in 2008 (16) SCC 417 , the question of reverse burden of proof came up for consideration in the context of Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 54 and 53A of the said Act. 26. In Noor Aga v. State of Punjab reported in 2008 (16) SCC 417 , the question of reverse burden of proof came up for consideration in the context of Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 54 and 53A of the said Act. The said judgment has recognised that presumption of innocence is a valuable right to a person but it is subject to the “establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused.” [Noor Aga (supra) at paragraph 35 of the report] A right to be presumed innocent is, undoubtedly, a valuable right but when a reverse burden is introduced by the legislator upon establishment of certain foundational facts on the burden of proof the accused would be required to discharge such reverse burden. The provision of reverse burden is not only provided for under special acts like the N.D.P.S. Act, N.I. Act and the present one but also under the general statutes. The Indian Penal Code, 1860 and the Evidence Act, 1872 provide for such a burden on an accused in certain matters, as, for example, under Section 113–A and 113-B thereof. 27. All such legislation has to be construed in a Constitutionally-sound manner and the overarching test which these statutory provisions envisaging a reverse burden of proof have to pass to be deemed vires the Constitution is the proportionality test. To quote S.B. Sinha, J. in Noor Aga (supra): “55. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens. 56. The court must assess the importance of the right being limited to our society and this must be weighed against the purpose of the limitation. The purpose of the limitation is the reason for the law or conduct which limits the right. X XX 86. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. X XX 86. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself. The principles for determining whether a reverse burden is compatible with the presumption of innocence should be applied in each case having regard to the statutory provisions involved therein.” (emphasis supplied) 28. The distinction between an evidentiary burden of proof and a persuasive burden of proof is of great pedigree as noted by Beg, J. (as His Lordship then was) (giving the judgment of a three-Judge Bench of the Supreme Court) in Narayan Govind Gavate and Ors v. State of Maharashtra, reported in A.I.R. 1977 S.C. 183, at paragraph 16 of the report: ‘16. In Phipson on Evidence (11th Edn.) (at page 40, paragraph 92), we And the principles stated in a manner which sheds considerable light on the meanings of the relevant provisions of our Evidence Act: “As applied to judicial proceedings the phrase 'burden of proof has two distinct and frequently confused meanings : (1) the burden of proof as a matter of law and pleading-the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of adducing evidence.”’ 29. To understand the difference between an evidentiary burden of proof and a persuasive burden of proof, we may have regard to the dicta of Lord Hope of Craighead in Reg. v. D.P.P., ex parte Kebeline & Ors., reported in [2000] 2 A.C. 326, at pp. 378H-379A of the report: ‘It is necessary in the first place to distinguish between the shifting from the prosecution to the accused of what Glanville Williams, at pp. v. D.P.P., ex parte Kebeline & Ors., reported in [2000] 2 A.C. 326, at pp. 378H-379A of the report: ‘It is necessary in the first place to distinguish between the shifting from the prosecution to the accused of what Glanville Williams, at pp. 185-186, described as the “evidential burden,” or the burden of introducing evidence in support of his case, on the one hand and the “persuasive burden,” or the burden of persuading the jury as to his guilt or innocence, on the other. A “persuasive” burden of proof requires the accused to prove, on a balance of probabilities, a fact which is essential to the determination of his guilt or innocence. It reverses the burden of proof by removing it from the prosecution and transferring it to the accused. An “evidential” burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. But if it is put in issue, the burden of proof remains with the prosecution. The accused need only raise a reasonable doubt about his guilt.’ (emphasis supplied) 30. It may be gleaned from Lord Hope’s analysis that an evidentiary burden is essentially a burden of objecting. As Lord Bingham states in Sheldrake v D.P.P., reported in [2004] UKHL 43 : [2005] 1 All E.R. 237 at paragraph 1 of the judgment: “An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that ground of exoneration does not avail the defendant.” 31. A statute which places an evidentiary burden by way of an unfavourable presumption on the actus reus/mens rea of an accused person merely requires that he or she lead evidence to rebut such a presumption. The accused needs to show that the presumption deserves to be rebutted, he or she does not need to prove that the requisite actus reus/mens rea does not stand established. The accused needs to show that the presumption deserves to be rebutted, he or she does not need to prove that the requisite actus reus/mens rea does not stand established. The task of proving that the requisite mens rea or actus reus stands established continues to rest on the prosecution. The presumption of innocence is not assaulted; it is merely suspended till the time the accused objects to such suspension by leading evidence. Once such an objection is made, the prosecution has to then operate as though there is a presumption of innocence in favour of the accused and has to prove that elements of the offence have been established beyond reasonable doubt. 32. In contrast, a persuasive burden of proof, when cast upon an accused person by a statute, requires him to actually show that the elements of the offence of which he or she is charged stands disproved. He or she cannot merely seek to rebut the presumption by leading evidence; he or she has to lead evidence such that he or she can satisfy the court that he or she has not committed an offence. 33. In other words, a statutory provision requiring a persuasive burden of proof presumes guilt and only abandons that presumption when the accused proves that he or she is not guilty. Whereas, a statutory provision requiring an evidentiary burden of proof merely suspends the presumption of innocence and resumes the same if the accused shows that he or she is not guilty instead of having to prove the same. 34. I may draw further support for these conclusions from the judgment of Sarkaria, J. (giving the judgment of a Division Bench of the Supreme Court) in Syad Akbar v. the State of Karnataka, reported in 1980 (1) SCC 30 : MANU/SC/0275/1979, where His Lordship whilst commenting on the maxim res ipsa loquitor (“the thing speaks for itself”), gave us an illuminating discussion (at paragraphs 21-23 of the SCC report) on the various presumptions found in the law of evidence which is reproduced herein below (See also – Cross on Evidence (10th edn.) at [7250], Phipson on Evidence (19th edn.) at paragraph 6-18): ‘21. …….…..Presumptions are of three types : (i) Permissive presumptions or presumptions of fact. (ii) Compelling presumptions or presumptions of law (rebuttable). (iii) Irrebuttable presumption of law or 'conclusive proof. …….…..Presumptions are of three types : (i) Permissive presumptions or presumptions of fact. (ii) Compelling presumptions or presumptions of law (rebuttable). (iii) Irrebuttable presumption of law or 'conclusive proof. Clauses (i), (ii) and (iii) are indicated in Clauses (1), (2) and (3) respectively, of Section 4, Evidence Act. 'Presumptions of fact' are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the Constitution of the human mind, the springs of human action, the usages and habits of society and ordinary course of human affairs. Section 114 is a general section dealing with presumptions of this kind. It is not obligatory for the Court to draw a presumption of fact. In respect of such presumptions, the Act allows the judge a discretion in each case to decide whether the fact which under Section 114 may be presumed has been proved by virtue of that presumption. [See Otto George (infra)] 22. In case of a 'Presumption of Law' no discretion has been left to the Court, and it is bound to presume the fact as proved until evidence is given by the party interested to rebut or disprove it. Instances of such presumptions are to be found in Sections 79, 80, 81, 83, 85, 89 and 105, Evidence Act. 23. The distinction between the effect of the first and the second kind of presumptions on the burden of proof, is important. Presumptions of Fact [i.e. presumptions placing an evidential burden of proof on the accused] merely affect the "burden of going forward with the evidence." 'Presumptions of Law' [i.e. presumptions placing a persuasive burden of proof], however, "go so far as to shift the legal burden of proof so that, in the absence of evidence sufficient to rebut it on a balance of probability, a verdict must be directed". (Fleming)’ (emphasis supplied) 35. In resolving the question of whether Sections 29 and 30 of the POCSO Act place an evidentiary burden or a persuasive burden of proof on the accused, it would be necessary to look at cases where the courts have more fully revealed the distinction between the two onuses of proof under analogous statutory provisions. While there are many judgments on this issue, I make reference to only a few of them for the high authority they possess and for the sake of brevity. 36. While there are many judgments on this issue, I make reference to only a few of them for the high authority they possess and for the sake of brevity. 36. I may refer to Dhanvantrai Balwantrai Desai v. State of Maharashtra, reported in 1964 (1) Cri. L.J. 437. In this case, Section 4(1) of the Prevention of Corruption Act, 1947 came up for interpretation. The said subsection stated as follows: "Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or,, as the case may be, without consideration or for a consideration which he knows to be inadequate." (emphasis supplied) 37. It was contended before a five-Judge Bench of the Supreme Court that the said sub-section could be interpreted to mean that a mere receipt of any money does not justify the raising of a presumption thereunder and that something more than the mere receipt of money has to be proved. It was further contended that the accused person could rebut the presumption arising under the said sub-section by offering an explanation which is reasonable and probable. It was also contended that whether a presumption arises from the common course of human affairs or from a statute makes no difference as to the manner in which that presumption could be rebutted. In regards the last point, the decision of the Judicial Committee of the Privy Council in Otto George Gfeller v. The King, reported in A.I.R. 1943 P.C. 211 was relied upon. 38. In regards the last point, the decision of the Judicial Committee of the Privy Council in Otto George Gfeller v. The King, reported in A.I.R. 1943 P.C. 211 was relied upon. 38. Mudholkar J. (giving the judgment of the five-Judge Bench of the Supreme Court) negated these contentions in the following words at paragraphs 12 and 13 of the report: (12) In the decision referred to above the Privy Council, when dealing with a case from Nigeria, held that if an explanation was given which the jury think might reasonably be true and which is consistent with innocence, although they were not convinced of its truth, the accused person would be entitled to acquittal inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond 'reasonable doubt of the guilt of the accused. That, however, was a case where the question before the jury was whether a presumption of the kind which in India may be raised under s. 114 of the Evidence Act could be raised from the fact of possession of goods recently stolen, that the possessor of the goods was either a thief or receiver of stolen property. In the case before us, however, the presumption arises not under s. 114 of the Evidence Act but under s. 4(1) of the Prevention of Corruption Act. It is well to bear in mind that whereas under s. 114 of the Evidence Act it is open to the Court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact and it is not obligatory upon the court to draw such presumption, under sub-s. (1) of s. 4, however, if a certain fact is proved, that is, where any gratification (other than legal gratification) or any valuable thing is proved to have been received by an accused person the court is required to draw a presumption that that person received that thing as a motive of reward such as is mentioned in s. 161 I.P.C. Therefore, the Court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under s. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'Proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that 'a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. (13) How the burden which has shifted to the accused under s. 4(1) of the prevention of Corruption Act is to be discharged has been considered by this Court in State of Madras v. A. Vaidyanatha Iyer (1) where it has been observed: "Therefore, where it is proved that a gratification has been accepted, then the presumption shall at once arise under the section. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. It may here be mentioned that the legislature has chosen to use the words 'shall presume' and not 'may presume', the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but s. 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence, i.e., presumptions, and, therefore, should have the same meaning. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but s. 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence, i.e., presumptions, and, therefore, should have the same meaning. "Shall presume' has been defined in the Evidence Act as follows : "'Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved." It is a presumption of law and therefore it is obligatory on the court to raise this presumption in every case brought under s. 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence." (emphasis supplied) 39. In the above quoted paragraphs, Mudholkar, J. holds the said sub-section to require the courts to presume that the accused had a motive of reward on the mere establishment of the fact that the accused person accepted or obtained or agreed to accept or obtain any gratification. His Lordship holds that presumption to be rebutted only when the contrary is directly established by the accused. His Lordship’s reasoning rests on the holding that the presumption under the said sub-section is a presumption in law and not a presumption of fact. It is on this holding that His Lordship distinguishes Otto George (supra) by stating that that case was concerned with Section 114 of the Evidence Act, whereby it is not mandatory, as a matter of law, for the court to draw a presumption unlike Section 4(1), whereby the court is required to mandatorily presume the existence of the relevant motive unless the contrary is proved by directly establishing the existence of a fact(s). 40. A similar and more recent holding is found in Kebilene (supra) (see also: Reg. v Lambert, reported in [2002] 2 A.C. 545), where, as already stated, Lord Hope provided us a very thorough analysis of the difference between an evidential burden of proof and a persuasive burden of proof. In this case, Section 16A of the British Prevention of Terrorism (Temporary Provisions) Act 1989 came up for consideration. v Lambert, reported in [2002] 2 A.C. 545), where, as already stated, Lord Hope provided us a very thorough analysis of the difference between an evidential burden of proof and a persuasive burden of proof. In this case, Section 16A of the British Prevention of Terrorism (Temporary Provisions) Act 1989 came up for consideration. The said section stated as follows: A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism to which this section applies. (2) The acts of terrorism to which this section applies are – (a) acts of terrorism connected with the affairs of Northern Ireland; and (b) acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland. (3) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above. (4) Where a person is charged with an offence under this section and it is proved that at the time of the alleged offence-(a) he and that article were both present in any premises; or (b) the article was in premises of which he was the occupier or which he habitually used otherwise than as a member of the public, the court may accept the fact proved as sufficient evidence of his possessing that article at that time unless it is further proved that he did not at that time now of its presence in the premises in question, or, if he did know, that he had no control over it.” (emphasis supplied) 41. The issue that, inter alia, came up before the House of Lords in the case was whether Section 16A was compatible with Art. 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated by the Human Right Act 1998 in the United Kingdom. The issue that, inter alia, came up before the House of Lords in the case was whether Section 16A was compatible with Art. 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated by the Human Right Act 1998 in the United Kingdom. While Lord Slynn of Hadley and Lord Steyn expressed no opinion on the issue, Lord Hope, Lord Cooke of Thorndon and Lord Hobhouse of Woodborough watered down Section 16A to place an evidential burden on the accused in conformity with Art. 6(2) of the said Convention. However, all three of Their Lordships were in agreement that, on its proper reading, Section 16A placed a persuasive burden upon the accused. The holding of Lord Hope in this regard (at pp. 381F-382D) is relevant for our purposes and it is set out below without any attempt at summarization given the lucidity of His Lordship’s opinion. ‘Section 16A creates an offence which is described in the side note as possession of articles for suspected terrorist purposes. It is made up of six subsections, of which those which are relevant to the issues raised by article 6(2) of the Convention are subsections (1), (3) and (4). Subsection (1) creates the offence. It is based on reasonable suspicion. All the prosecution has to do is prove that the accused was in possession of article in circumstances which give rise to a reasonable suspicion that they were in his possession for a purpose connected with terrorism. Although the essence of the offence is the possession of articles for a purpose connected with terrorism, the prosecution does not have to prove that that was in fact the purpose. There is therefore a presumption that this was the purpose. It takes effect once circumstances giving rise to a reasonable suspicion have been proved. The severity of this approach is tempered by subsection (3). It provides that it is a defence for the accused to prove that the article was not in his possession for a terrorist purpose. Nothing is said expressly about the burden or standard of proof. But Mr. Pannick accepted that, according to the ordinary principles of construction, this provision has the effect of transferring the burden of proof as to the purpose for which the article was in his possession to the accused. Then there is subsection (4). This deals with the question of possession. But Mr. Pannick accepted that, according to the ordinary principles of construction, this provision has the effect of transferring the burden of proof as to the purpose for which the article was in his possession to the accused. Then there is subsection (4). This deals with the question of possession. In the ordinary case knowledge and control are essential elements which the prosecutor must prove in order to show that the accused was in possession of an article. This subsection enables a court to find these facts to have been established by evidence that the accused and the article were both present in any premises or that the article were both present in any premises or that the article was in premises of which he was the occupier or habitual user, unless he proves that he did not know of its presence in the premises or, if he did know, that he had no control over it. The burden of proving lack of knowledge or control is on the accused. But the court is told only that it “may” draw the inference, not that it must do so. In view of the width of the meaning which is given to the expression “premises,” the question whether it would be right for the court to rely on the evidence described in subsection (4) as sufficient evidence will obviously vary according to the circumstances. According to the classification which I have outlined, subsection (3) of section 16A imposes a persuasive burden of proof on the accused, on a balance of probabilities, that the article was not in his possession for a purpose connected with terrorism. If that burden is not discharged, or the accused elects not to undertake it, subsection (1) contains a mandatory presumption’ (emphasis supplied) 42. The aforementioned cases may be contra-distinguished with the case of Reg. v Jheeta, reported in [2008] 1 W.L.R. 2582. In that case, inter alia, Section 75 of the British Sexual Offences Act, 2003 came up for consideration. Section 75 provides as follows: “(I) If in proceedings for an offence to which this section applies it is proved-(a) that the defendant did the relevant act…. v Jheeta, reported in [2008] 1 W.L.R. 2582. In that case, inter alia, Section 75 of the British Sexual Offences Act, 2003 came up for consideration. Section 75 provides as follows: “(I) If in proceedings for an offence to which this section applies it is proved-(a) that the defendant did the relevant act…. The complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.” 43. Sir Igor Judge, President of Queen’s Bench Division (later the Lord Chief Justice of England and Wales), sitting in the Court of Appeal stated that Section 75 raises an evidential presumption which would require the prosecution to disprove consent if sufficient evidence is produced to raise the issue. The words of Sir Judge are reproduced below: “The starting point in our analysis is to acknowledge that in most cases, the absence of consent, and the appropriate state of the defendant’s mind, will be proved without reference to evidential or conclusive presumptions. When they do apply, sections 75 and 76 are directed to the process of proving the absence of consent to whichever sexual act is alleged. They are concerned with presumptions about, rather than the definition of, consent. The evidential presumptions in section 75 continue to require the prosecution to disprove consent if, in the circumstances defined in the section, there is sufficient evidence to raise the issue. These presumptions are not conclusive, merely evidential.” (emphasis supplied) 44. The key words in Sir Igor’s Judgment are those that require the prosecution to disprove consent. The learned Judge states here that if sufficient evidence is adduced to raise an issue as to whether consent for the relevant act under Section 75 had been given, the burden of proof would shift back to the prosecution, which would then have to prove beyond reasonable doubt that there was no consent for the relevant act. Unlike the statutory provisions discussed before this one, there is no shifting of the burden of proof after evidence is adduced, the burden of proving that the presumption does not apply remains firmly on the person on whom the presumption is made applicable. 45. Unlike the statutory provisions discussed before this one, there is no shifting of the burden of proof after evidence is adduced, the burden of proving that the presumption does not apply remains firmly on the person on whom the presumption is made applicable. 45. The common thread running through these high authorities is that a persuasive burden of proof under a statute requires the accused to prove the facts necessary to be proved to rebut the presumption under that statute (and not merely lead evidence). It is important to note also that the provisions that have been construed and interpreted in the aforementioned cases required the prosecution to prove a certain fact before a presumption can kick in and the burden of proof is reversed. This only makes sense for if the mere factum of a person being charged or prosecuted could be deemed as requiring the court to presume his commission of an offence, then Viscount Sankey’s golden thread of presuming innocence before guilt in criminal jurisprudence would certainly be lost. Finally, it is also seen that a presumption under the aforesaid statutes is a presumption by operation of law and not a presumption of fact, for the presumption kicks in not as a matter of logic or a normal understanding of cause and effect in human nature, but as a consequence of the law deeming that proof of one fact shall make the court presume the existence of another. 46. However, the standard of proof required, as revealed by the authorities referred to above to prove the necessary facts when the persuasive onus of proof is on the accused is on a balance of probabilities. It is not the same as that of the prosecution, unless the statute states as such, for example, the clarification in Section 35(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 explicitly states that the reverse burden of proof contained therein has to be discharged by the accused beyond reasonable doubt, just like the prosecution in a criminal case: “35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation-In this section 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believe it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” 47. However, even then the Supreme Court has blunted the full force of this clarification in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in A.I.R. 2000 S.C. 821, where Thomas, J. (giving the judgment of a three-Judge Bench of the Supreme Court) stated (at paragraph 22 of the report): “22. The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.” 48. On the conspectus of authorities, it is clear to me that Sections 29 and 30 of the POCSO Act certainly place a persuasive burden on the accused to show that he did not possess the requisite culpable mental state for the offence for which he is prosecuted. On the conspectus of authorities, it is clear to me that Sections 29 and 30 of the POCSO Act certainly place a persuasive burden on the accused to show that he did not possess the requisite culpable mental state for the offence for which he is prosecuted. The accused, once such presumption bites, cannot merely adduce evidence to raise an issue that he may not have had the culpable mental state, he has to prove that he did not have the culpable mental state in accordance with the clear words of the statute. The presumption is not the natural or logical consequence of the conduct of human affairs, but a declaration made by law. Moreover, sub-section 2 of Section 30 much like the Explanation found in Section 35(2) of the N.D.P.S. Act states that the standard of proof required to rebut the presumption therein is required to be beyond reasonable doubt. 49. But to construe such a statute strictly by interpreting Section 30 to truly require proof beyond reasonable doubt in a manner that is exactly like the prosecution in a normal criminal case on the part of the accused would certainly fall foul of the presumption of innocence that is ingrained in our legal system. This would be so because requiring proof that a person is not of guilty mind from that person itself would be presuming guilt rather than innocence. This would be violative of the nearly-sacrosanct cannon of construction which states that Parliament is presumed to respect the rule of law and the human rights of individuals especially in light of Noor Aga (supra). 50. The same point would apply to the fact that Sections 29 and 30 do not require establishment of a prior fact by the prosecution for the presumption under it to kick in. To construe this literally would be violative of the presumption that Parliament respects individual rights. 51. That apart, noticing the decision of Abdul Rashid (supra) on the discharge of reverse onus of proof on Section 35(2) of the N.D.P.S. Act, it would seem wholly unreasonable to hold that a pari materia provision like Section 29 or 30 of the POCSO Act actually requires proof beyond reasonable doubt in all its dimensions. 52. 51. That apart, noticing the decision of Abdul Rashid (supra) on the discharge of reverse onus of proof on Section 35(2) of the N.D.P.S. Act, it would seem wholly unreasonable to hold that a pari materia provision like Section 29 or 30 of the POCSO Act actually requires proof beyond reasonable doubt in all its dimensions. 52. This leads us to an interpretation that the foundational facts of the prosecution’s case have to be established by leading evidence before the statutory presumption in Section 29 or 30 can kick in. In this conclusion, I am inclined to refer to the judgment of Bagchi, J. in Shahid Hossain Biswas v. State of West Bengal, reported in 2017 (3) Cal. L.T. 243, (at paragraphs 2124 of the report) without any attempt at summarizing the same on my part, given the correctness of His Lordship’s exposition of the law. Needless to say, while the following dicta is on Section 29, it is equally applicable mutatis mutandis to Section 30: ‘21....I am not unmindful of the statutory presumption available to the prosecution in a case under the POCSO Act, 2012. Section 29 of the said Act reads as follows:- "29. Presumption as to certain offences.-Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved." 22. The law, therefore, provides for a reverse burden upon the accused in a prosecution under sections 3, 5, 7 and 9 of the aforesaid Act. The statutory presumption creates an exception to the ordinary rule of presumption of innocence available to an accused in a criminal trial and puts the onus on the accused to rebut such presumption and establish his innocence. Presumption of innocence is a basic human right which is a vital facet of fair trial rights enshrined in various international covenants like the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights (to which India is a signatory) but is not a fundamental right under Part III of the Constitution. [See Noor Aga vs. State of Punjab, (2008) 16 SCC 417 ]. [See Noor Aga vs. State of Punjab, (2008) 16 SCC 417 ]. The concept of presumption of innocence has, in recent times, been reversed in many situations by creating statutory presumptions like under sections 113A, 113B or 114A of the Evidence Act shifting the burden on the accused to prove his innocence. Section 29 of the POCSO is, therefore, a species of such exception to the ordinary rule of presumption of innocence and must be borne in mind while appreciating the evidence of prosecution witnesses in a trial under the POCSO Act. The expressions "shall presume" and "unless contrary is proved" in the aforesaid provision creates a reverse burden on an accused to prove his innocence to earn an order of acquittal and absolves the burden of the prosecution to prove his guilt beyond reasonable doubt. How is the accused to discharge such burden? Sections 3 and 4 of the Evidence Act define the words 'proved', 'shall presume' and 'disproved' as follows:- Section 3:-"Proved" -A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved"-A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Section 4:-"Shall presume".--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved." 23. A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show that in a prosecution under the POCSO Act an accused is to prove 'the contrary', that is, he has to prove that he has not committed the offence and he is innocent. It is trite law that negative cannot be proved [see Sait Tarajee Khimchand vs. Yelamarti Satyam, (1972) 4 SCC 562 , Para-15]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is trite law that negative cannot be proved [see Sait Tarajee Khimchand vs. Yelamarti Satyam, (1972) 4 SCC 562 , Para-15]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary. 24. Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the light of the special features of a particular case, eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case while determining whether the accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to mechanically accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, howsoever, patently absurd or inherently improbable it may be.’ (emphasis supplied) 53. In this regard reference can be made to the judgment of Pitale, J. in Navin Dhaniram Baraye v. the State of Maharashta, reported in 2018 Cri. L.J. 3393, where it is reiterated that before the reverse burden of proof is placed on the accused, the necessary foundational facts have to be established. In this regard reference can be made to the judgment of Pitale, J. in Navin Dhaniram Baraye v. the State of Maharashta, reported in 2018 Cri. L.J. 3393, where it is reiterated that before the reverse burden of proof is placed on the accused, the necessary foundational facts have to be established. The relevant portions of the said case are set out below (at paragraph 23 of the report): “23…It becomes clear that although the provision states that the Court shall presume that the accused has committed the offence for which he is charged under the POCSO Act, unless the contrary is proved, the presumption would operate only upon the prosecution first proving foundational facts against the accused, beyond reasonable doubt. Unless the prosecution is able to prove foundational facts in the context of the allegations made against the accused under the POCSO Act, the presumption under Section 29 of the said Act would not operate against the accused. Even if the prosecution establishes such facts and the presumption is raised against the accused, he can rebut the same either by discrediting prosecution witnesses through cross-examination demonstrating that the prosecution case is improbable or absurd or the accused could lead evidence to prove his defence, in order to rebut the presumption. In either case, the accused is required to rebut the presumption on the touchstone of preponderance of probability.” 54. In regards the question of how the burden of proof under Section 30 is to be discharged, I hold following Abdul Rashid (supra) on Section 35(2) of the N.D.P.S. Act that to discharge such burden of proof one need only cast serious doubt on the prosecution’s case by contradicting or demolishing the evidence of the prosecution. This may be done by leading evidence oneself which contradicts the prosecution’s case or deconstructing the prosecution’s case via cross-examination. The requirement shall not be dispositive or clear proof of a case that establishes alternative facts, but a proof of the fact that the prosecution’s case is highly likely to be untrue. Thus, in the cases of reverse burden of proof the presumption can operate only after the initial burden which exists on the prosecution is satisfied. [See. Mukesh Singh v. State (NCT of Delhi) reported in 2020(10) SCC 120 ] 55. Mr. Thus, in the cases of reverse burden of proof the presumption can operate only after the initial burden which exists on the prosecution is satisfied. [See. Mukesh Singh v. State (NCT of Delhi) reported in 2020(10) SCC 120 ] 55. Mr. Illango has sought to punch holes in the testimony of the victim girl by pointing to contradictions between the deposition of the accused and her statement under Section 164 of the Cr.P.C. The learned counsel has sought to state that a DNA report would be mandatory for the conviction of the accused. He has also argued that if we take into consideration that the offence was last committed in the month of the August, 2014 then the child of the victim girl should have been born by the end of April, 2015, whereas the child was born on June 28, 2015. 56. In the instant case, it has to be seen whether the foundational facts have been established for the accused to be burdened with the reverse burden of proof. It has to be remembered that it is a quality of evidence which is important and not the number of witnesses. A test is whether the evidence has the ring of truth, is cogent, credible and trustworthy. The ocular testimony of the victim alone can be taken into consideration to convict a person in a case of rape if the statement of the victim is otherwise convincing and appealing to the judicial mind. It has to be remembered that the victim was a child and the perpetrator of the offence was her brother-in-law. There is no hostility or enmity between the family of the victim and the accused. The victim has all throughout maintained that there has been sexual intercourse between her and her brother-in-law and such sexual intercourse has happened over a period of time. Where offence of rape is committed upon the victim child, conviction can be based relying solely on her testimony. It has not to be forgotten that the present accused is none other than the victim’s brother-in-law. It is not easy to lodge a complaint of this nature exposing the victim to the risk of social stigma which unfortunately still prevails in our society. A decision to lodge FIR becomes more difficult and challenging, if not impossible, when an accused happens to be a family member. This reticence and stoic silence hurts the victim. It is not easy to lodge a complaint of this nature exposing the victim to the risk of social stigma which unfortunately still prevails in our society. A decision to lodge FIR becomes more difficult and challenging, if not impossible, when an accused happens to be a family member. This reticence and stoic silence hurts the victim. After all, in a situation like this not only the honour of the family is at stake but it also might antagonise other relations as well. It is now well settled that the testimony of a victim in cases of sexual offence is vital and unless there are compelling reasons which necessitate looking for corroboration, the court should unhesitatingly act on such testimony of the victim of the sexual assault alone to convict the accused. The only caution the court needs to exercise is that the testimony of the victim must inspire the confidence of the court. As observed by the Hon’ble Supreme Court in Bhupinder Sharma v. State of Himachal Pradesh, reported in 2017 (2) SCC 51 , at paragraph 31 of the report: “Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance”. The victim has steadfastly maintained sexual intercourse. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance”. The victim has steadfastly maintained sexual intercourse. It matters little if it’s being done only once or repeatedly. Consent of a minor is immaterial. Minor discrepancies, inconsistencies, exaggerations or embellishments which do not go to the heart of the matter and do not shake the foundational facts or the basic version of the prosecution cannot be the ground to reject the evidence of the victim. [See. State of U.P. v. Ram Kumar reported in 2017(14) SCC 614 ] In view thereof the argument of Mr. Illango that the appellant had been falsely implicated cannot be accepted. 57. Moreover, while the FIR and the deposition do mention that the rape took place five months ago, the statements of the victim therein also mention sexual intercourse on several occasions. The statement recorded under Section 164 Cr.P.C, in fact, alleges sexual intercourse between the victim and the accused over a period of time. Hence, to conclude that the date of the offence has to be restricted to August/September, 2014 is unsupported by the evidence. 58. The defence has not been able to produce any evidence that would allow us to conclude that the date of the offence should be restricted to August/September, 2014. As far as the point on the DNA report is concerned, we notice the order of a three-Judge of the Supreme Court in Sunil v. State of M.P., reported in 2017 (4) SCC 393 , where it is clearly stated at paragraph 3 of the report that: “From the provisions of Section 53A of the Code and the decision of this Court in Krishan Kumar (supra) [ 2011 (7) SCC 130 ] it does not follow that failure to conduct the DNA test of the samples taken from the accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar (para 44) Section 53A really "facilitates the prosecution to prove its case". As held in Krishan Kumar (para 44) Section 53A really "facilitates the prosecution to prove its case". A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favoring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered. It is to the other materials brought on record by the prosecution that we may now turn to.” 59. In the instant case, failure to conduct the DNA test is not fatal as there could be more than one reason for the victim not to agree to such a test. In this trial, we are not concerned with the paternity of the child. The victim has been able to establish at the trial the factum of a penetrative sexual assault. Hence, the foundational facts required for the presumption under Sections 29 and 30 of the POCSO Act to kick-in stand established. The burden of proof falls squarely on the accused-appellant to rebut the said presumptions on the balance of probabilities, there is nothing in the evidence that discharges the said burden and the arguments of Mr. Illango stand negated. 60. In view of the aforesaid the order of the learned Special Judge (POCSO) is upheld and the appeal stands dismissed.