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2022 DIGILAW 1068 (GAU)

Tanga Ruyi v. State Of Arunachal Pradesh

2022-09-21

MALASRI NANDI, SANJAY KUMAR MEDHI

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JUDGMENT : MALASRI NANDI, J. Heard Mr M Boje, learned counsel appearing on behalf of the accused/ appellant and Ms L Hage, learned Additional Public Prosecutor for the State of Arunachal Pradesh. Also heard Mr T Toyeng, learned counsel appearing for and on behalf of the informant. 2. This criminal appeal has been preferred under Sec. 374 (2) of the Code of Criminal Procedure, 1973, against the Judgment and Order dtd. 1/10/2019, passed by the Special Judge (POCSO Act), Yupia, Arunachal Pradesh, in POCSO Case No. 46/2015, convicting the accused appellant under Sec. 376(2)(i)/448 IPC, and sentencing the appellant to undergo Rigorous Imprisonment for a term of 12 years, with fine of Rs.10,000.00 in default to undergo further period of 6 months' Rigorous Imprisonment and also convicted the appellant under Sec. 448 IPC and sentenced him to suffer Simple Imprisonment for a period of 6 months with fine of Rs.1,000.00, in default to suffer further period of 1 month Simple Imprisonment. Both the sentences were directed to run concurrently. 3. The brief facts of the case is that on 7/8/2015, one Subonang Taidong lodged a written FIR before the OC, Women PS, Itanagar, stating inter alia that on the same day, the accused appellant had committed rape on her minor daughter, aged about 11 years in her rented house. When she returned back home, her daughter told her about the incident that the accused/appellant forcefully inserted finger inside her private part and also had committed rape on her. It is also alleged that the accused appellant earlier also had tried to commit rape on her. 4. On receipt of the complaint, a case was registered vide Itanagar Women PS Case No. 78/2015, under Sec. 448/376(2)(i) IPC, read with Sec. 4 of the POCSO Act and started investigation. During investigation, the Investigating Officer visited the place of occurrence, recorded the statement of witnesses. The victim was sent for medical examination. Her statement was also recorded by the learned Magistrate, under Sec. 164 Cr.P.C. and some articles were also seized. 5. During the course of investigation of the case, the accused was also arrested and after completion of mandatory period, he was released on bail. After completion of investigation, chargesheet was submitted against the appellant under 448/376(2)(i) IPC read with Sec. 4 of the POCSO Act. 6. 5. During the course of investigation of the case, the accused was also arrested and after completion of mandatory period, he was released on bail. After completion of investigation, chargesheet was submitted against the appellant under 448/376(2)(i) IPC read with Sec. 4 of the POCSO Act. 6. On receipt of the chargesheet, the trial was commenced before the learned Special Judge (POCSO Act) Yupia, Arunachal Pradesh and cognizance was taken accordingly. Charge was framed under Ss. 448/376(2)(i) IPC, read with Sec. 4 of the POCSO Act, which was read over and explained to the appellant, to which he pleaded not guilty. 7. During the course of trial, the prosecution had examined as many as 6 (six) witnesses, including the victim and marked 9 (nine) exhibits. On the other hand, in support of his case, the accused appellant adduced 5 (five) defence witnesses. After examining the prosecution witnesses, the incriminating circumstances that culled out from the evidence of the prosecution witnesses, were put before the accused appellant and questioned under Sec. 313 Cr.P.C., wherein he denied all the incriminating circumstances as false. After hearing the learned counsel for both the parties, the accused appellant was convicted as aforesaid. Hence, this appeal. 8. It was urged by the learned counsel for the appellant that the alleged occurrence took place in the rented house of the informant. But except the family members of the victim girl, none of the independent witnesses were examined by the prosecution, even though near the place of occurrence, some other persons used to reside. It is specifically mentioned that owner of the rented house of the informant was not examined. Therefore, non-examination of the independent witnesses is fatal to the prosecution case. 9. It is also the submission of learned counsel for the appellant that the medical records show that there was no external injury found on the body of the victim girl and as such, the medical evidence also did not support the case of prosecution. In fact, the Medical Officer deposed in his evidence that the victim was mentally retarded and she could not speak anything about the incident. Under such backdrop, it is not reliable to convict a person on the basis of a sole victim. 10. Learned counsel for the appellant also contended that there are material contradictions between/amongst the evidence of prosecution witnesses. Under such backdrop, it is not reliable to convict a person on the basis of a sole victim. 10. Learned counsel for the appellant also contended that there are material contradictions between/amongst the evidence of prosecution witnesses. Further the witnesses who were examined by the prosecution are relatives and family members of the victim girl and no independent eye-witness was examined by the Prosecution. The prosecution failed to conduct a fair investigation and they laid a charge sheet based only on the concocted story made by the victim girl and her family members. Therefore, the benefit of doubt would extend to the appellant. However, the learned Special Judge, failing to consider the entire oral and documentary evidence, convicted the accused appellant only on assumption, conjectures and surmises. Therefore, the judgment of conviction and sentence, passed by the learned Special Judge, Yupia is liable to be set aside. 11. In support of his submission, learned counsel for the appellant has relied on the following case-law: i) 2021(3) GLT 128: Criminal Appeal No. 64/2020 (Manirul Islam @ Manirul Zaman Vs. State of Assam and Anr.) 12. Per contra, learned Additional Public Prosecutor, in support of the impugned judgment, argued that it is a settled law that in a case of rape/penetrative sexual assault, the consistent testimony of prosecutrix would be sufficient to bring home the guilt of the accused and Courts except generally should not seek corroboration of the prosecutrix testimony. She also argued that it is also settled law that primacy should be given to the prosecutrix testimony over the medical evidence in the event, they were at variance with each other. 13. Learned Additional Public Prosecutor has also submitted that in the present case, the victim has made allegations against the accused appellant for committing penetrative/sexual assault on her and her clear and cogent evidence would suffice to establish the ingredients both under Sec. 376(2) (i) IPC and Sec. 4 of the POCSO Act. Therefore, the impugned judgment of Special Court is neither perverse nor contrary to law. In support of her submission, the learned Additional Public Prosecutor has placed reliance on the following case-laws: i) State of Himachal Pradesh Vs. Shree Kant Shekari; reported in [2004] 6 Supreme 550, ii) State of Punjab Vs. Gurmit Singh and Ors.; reported in (1996) 2 SCC 384 , iii) Phool Singh Vs. In support of her submission, the learned Additional Public Prosecutor has placed reliance on the following case-laws: i) State of Himachal Pradesh Vs. Shree Kant Shekari; reported in [2004] 6 Supreme 550, ii) State of Punjab Vs. Gurmit Singh and Ors.; reported in (1996) 2 SCC 384 , iii) Phool Singh Vs. State of Madhya Pradesh; (Criminal Appeal No. 1520 of 2021, disposed of on 1/12/2021 by the Hon'ble Supreme Court) iv) Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat; reported in (1983) 3 SCC 217 . 14. In the light of the rival submissions made on behalf of learned counsel for the appellant and learned Additional Public Prosecutor, the question which arises for consideration is whether the judgment passed by the learned Special Judge (POCSO Act) Yupia, Arunachal Pradesh, is either perverse or contrary to law. 15. In Rama and Ors. Vs. State of Rajasthan, reported in (2002) 4 SCC 571 , the Hon'ble Supreme Court has expressed about the duty of the appellate Court in the following words "It is well settled that in a criminal appeal, a duty is enjoined upon the appellate Court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial Court alone especially when the appeal has already been admitted and placed for final hearing. Upholding such a proceeding would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law". 16. The Hon'ble Apex Court reiterated the same guidelines regarding the duty of the appellate Court, while hearing an appeal subsequently in Md. Ali @ Guddu Vs. State of Uttar Pradesh reported in (2015) 7 SCC 272 . 17. Bearing the above principle in mind, let us now reconsider and re-appreciate the evidence adduced by the witnesses in the instant case. 18. PW-1, Subonang Taidong, is the informant and the mother of the victim. From her deposition, it reveals that she used to stay in a rented house along with her minor daughter, i.e., victim at F and G Sector, Itanagar. The accused appellant is their adjacent neighbor. He used to stay along with his wife, Naina Jebisow. The accused is a businessman, running a shop at Ganga and used to come home for lunch at noon and at that time, his wife Naina used to attend their shop in his place. The accused appellant is their adjacent neighbor. He used to stay along with his wife, Naina Jebisow. The accused is a businessman, running a shop at Ganga and used to come home for lunch at noon and at that time, his wife Naina used to attend their shop in his place. She (PW-1) used to go to his duty at the daytime. 19. On 07/8/2015, she went to Naharlagun hospital for delivery of her sister-in-law Jopuda Mara. She came back home at about 05:00 pm and then her daughter told her that the accused (Bhaiya) came to their house when she was watching TV in common room and took her in the bedroom, put his hands on her private parts and then, he laid her down and opened her underwear and thereafter he inserted his finger on her private part and thereafter he inserted his penis into her vagina. She told her that the accused had also bitten on her lips. Then her daughter showed her panty to her, which was kept behind the bed. She immediately called the wife of the accused and told her about the incident. 20. This witness (PW-1) also stated in her evidence that about 5 days back prior to the incident, her daughter also told her that, once the accused came to their house and inserted his hand and touched her private parts. Thereafter, the FIR was lodged, vide Exhibit - 1. At the relevant time of the incident, her daughter was 11 years of age. Her daughter was medically examined at Naharlagun hospital. 21. In her cross-examination, PW-1 replied that her daughter is not dumb and she could speak. Her daughter has given statement before the Police as well as before the Magistrate. However, she admitted that she was not present when the actual incident had occurred. 22. PW-2 is the victim. From her deposition, it discloses that on the date of incident at daytime, when she was watching TV in their common room, Bhaiya (accused) came to their house. At that time, her mother was not present at home. Accused took her in their bedroom, by pulling her on hand. He had, then laid her down on the bed, opened her panty and opened his pant and then inserted his finger and then his susuri (penis) inside her susu (vagina). Then, he had kissed her and biten on her lips. Accused took her in their bedroom, by pulling her on hand. He had, then laid her down on the bed, opened her panty and opened his pant and then inserted his finger and then his susuri (penis) inside her susu (vagina). Then, he had kissed her and biten on her lips. In her cross-examination, it was suggested that the accused did not do anything to her on that day, which was however denied by the PW-2. 23. PW-3 and PW-4 are the seizure witnesses. They deposed in their evidence that the accused was arrested for commission of rape on the victim. On the next date of the incident, they were called at Police Station and accordingly, they went there. Police showed them one underwear, which belonged to the accused. It was seized and they put their signature in the seizure list, vide Ext-4. 24. PW-5 is the Medical Officer, who examined the victim after the incident. According to him, the victim was about 11 years of age and she was mentally retarded. She could not tell the story properly. However, as per the history given by the mother of the victim, the accused had taken the victim on her bed, kissed her mouth, inserted his penis into her vagina. The victim was not able to tell whether she passed urine and whether there was any pain. However, the mother told that the accused was known to her. The victim looked depressed but could walk normally. There was no any significant finding regarding the sign of struggle. No significant body injury was also found, except mild discoloration of lower lip near the angle of mouth. 25. In his cross-examination, PW-5 replied that the victim was mentally retarded, because she could not answer any single question asked to her. The mild discoloration in the lips would be possible either by biting of other or by self, but he could not exactly say what was the cause of mild discoloration. The medical officer also stated that hymen of the victim was found elastic. In the case of hymen being elastic, it depends on size of a material used for insertion in the vagina. If the material is small enough, it cannot cause any injury. 26. PW-5 also stated that he examined the accused after examining the victim on the same day of the incident. In the case of hymen being elastic, it depends on size of a material used for insertion in the vagina. If the material is small enough, it cannot cause any injury. 26. PW-5 also stated that he examined the accused after examining the victim on the same day of the incident. On examination, no any injury or stain was found on the genital of the accused. Hence, no definite opinion could be given whether the accused had performed any recent sexual intercourse. However, the accused told that he was beaten by the mother of the victim, because of which there was some bruise over his back of left elbow, multiple bruise over back of right arm and over his back, left chest and small abrasion over right ear. 27. PW-6 is the Investigating Officer. From her deposition, it reveals that on 07/8/2015, she was working as SI of Police at Women Police Station at Itanagar. At the time of filing the FIR, the complainant along with the wife of the accused and the minor victim girl, had brought the accused at the Police Station. She sent both the accused and the minor for medical examination and seized the undergarments of both the accused and the minor victim girl. 28. During investigation, she visited the place of occurrence, drew the rough sketch map, recorded the statements of the complainant, victim and other witnesses. She also seized the birth certificate of the victim girl being handed over by her mother. She collected the medical report of the victim. After completion of investigation, chargesheet was submitted against the accused under Ss. 448/376 (2) (i) IPC, read with Sec. 4 of the POCSO Act. 29. In her cross-examination, PW-6 replied that according to the birth certificate submitted by the complainant and even by the physical appearance of the victim girl, she was minor at the time of the alleged occurrence. Though she had seized the birth certificate of the victim girl, she did not prepare any seizure memo, but the same was mentioned in the chargesheet. As she had already obtained the birth certificate of the victim girl, as such she did not make any attempt to ascertain her age through medical experts. 30. Though she had seized the birth certificate of the victim girl, she did not prepare any seizure memo, but the same was mentioned in the chargesheet. As she had already obtained the birth certificate of the victim girl, as such she did not make any attempt to ascertain her age through medical experts. 30. After going through the evidence of the aforesaid witnesses, it reveals that except the victim, there was no eye-witness to the incident, but it appears from the evidence of the victim girl that when her mother came home in the evening, she narrated the incident to her mother and she was very much consistent when her statement was recorded by the Investigating Officer as well as before the Magistrate. The victim and her mother specifically stated that the accused had committed sexual assault by inserting his finger as well as his penis inside the vagina of the victim. He had also kissed and biten the lips of the victim. The Medical Officer though stated that he did not find any injury on the body of the victim or her private parts, but he admitted that on examination he found discoloration of lower lip of the victim. The Medical Officer also clarified that hymen of the victim was found elastic and if a material is small, it cannot cause any injury. In the case of hymen being elastic, it depends on size of a material used for insertion in the vagina. PW-5 also admitted that at the time of giving history, when the accused was examined by him, he disclosed that he was beaten up by the mother of the victim, because of which he sustained injuries on his person. There is no explanation from the side of the accused, why he was assaulted by the mother of the victim causing such injuries. 31. The accused was examined in the case as DW-5, who deposed in his evidence that the alleged victim girl was about 11 years of age and she has been suffering from epilepsy and she was also mentally retarded. He did not have any enmity with the victim. 32. In his cross-examination, DW-5 replied that he knew DW-4, Deyebelo since his childhood and they are friends. Since he was an unemployed, his relation with his wife was not good. 33. He did not have any enmity with the victim. 32. In his cross-examination, DW-5 replied that he knew DW-4, Deyebelo since his childhood and they are friends. Since he was an unemployed, his relation with his wife was not good. 33. From the evidence of DWs-1, 2, and 3, it reveals that because of one rape case, the accused was being beaten up by some ladies. 34. DW-4, who is the friend of the accused stated that on 07/8/2015, when he was posted at the Women PS, Itanagar as ready party, he saw that the Investigating Officer of the case was enquiring the victim girl in her chamber in presence of the accused. He had perceived that on being asked, the victim girl was not replying anything and only she was smiling. On being repeatedly asked, the victim girl replied that "Bhaiya nahi kiya". In his crossexamination, DW-4 admitted that he knew the accused since his childhood and he was also his classmate. 35. From the evidence of DW-4, it reveals that he was employed at Women Police Station, Itanagar, as Constable at the relevant time of incident. But the IO, i.e., PW-6 nowhere stated that when she enquired the victim girl, some other persons were also present, including DW4. PW-6 specifically stated that at the time of filing the FIR, the complainant along with the wife of the accused and the minor victim girl had brought the accused at the Police Station and she sent both the accused and the minor for the medical examination. At this juncture, there is no reflection on the statement of DW-6 that she enquired the victim girl at the relevant time at the Police Station in presence of some other police personnel. Apart from that, DW-5, i.e., the accused/appellant nowhere stated, either in his statement recorded under Sec. 313 Cr.P.C. or in his evidence as DW-5, that the victim was enquired in the chamber of the IO at Women Police Station, Itanagar in presence of the accused and DW-4 and on being asked the victim girl replied that "Bhaiya nahi kiya". Under such backdrop, it can be readily inferred that whatever stated by DW-4 is concocted and for the sake of his friend, i.e., accused appellant. 36. Under such backdrop, it can be readily inferred that whatever stated by DW-4 is concocted and for the sake of his friend, i.e., accused appellant. 36. It is strenuously contended by the learned counsel for the appellant that since hymen of the victim was found to be intact and no spermatozoa was found on her private part, no offence of rape was made out. On the other hand, learned Additional Public Prosecutor contended that the consistent view of the Apex Court in this regard is that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration would be inconsequential. 37. The Hon'ble Apex court in Parminder @ Ladka Pola Vs. State of Delhi, reported in (2014) 2 SCC 592 , in a case arising from a similar incident in the year 2001, referring to its earlier decision in Wahid Khan Vs. State of Madhya Pradesh; reported in (2010) 2 SCC 9 , has referred to an extract from "Modi on Medical Jurisprudence and Toxicology" and held as follows: "Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within labia majora or the vulva or the pudenda with or without semen or even an attempt of penetration is quite sufficient for the purpose of law. It is therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains." 38. Sec. 375 IPC defines the offence of rape and the explanation to Sec. 375 IPC provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Sec. 375 IPC reads as under: [375. Rape.-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- (First) - Against her will. (Secondly) -Without her consent. (Thirdly) - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (Secondly) -Without her consent. (Thirdly) - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (Fourthly) -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law fully married. (Fifthly) - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly) - With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. 39. Sec. 3 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act, 2012) deals with penetrative sexual assault. Sec. 3 of the POCSO Act, 2012, reads as under: Sec. -3 - A person is said to commit "penetrative sexual assault" if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. 40. The use of the words "to any extent" in Sec. 3 (a) and (b) means that the penetration may not be necessarily deep or injurious to the private parts and even a minor penetration will constitute penetration within the ambit of Sec. 3 of the POCSO Act. 41. 40. The use of the words "to any extent" in Sec. 3 (a) and (b) means that the penetration may not be necessarily deep or injurious to the private parts and even a minor penetration will constitute penetration within the ambit of Sec. 3 of the POCSO Act. 41. Regarding age of the victim, according to the IO (PW-6), she had seized the birth certificate of the victim girl but she did not prepare any seizure memo. The Birth Certificate was not exhibited before the trial Court. But she has clearly stated in her evidence that according to the birth certificate submitted by the complainant and even by the physical appearance of the victim girl, she was a minor at the time of alleged offence. PW-6 also gave a clarification in her statement that while recording the statement of the victim, she did not mention the age of the victim as 11 years, as because she had already produced her birth certificate. 42. A Xerox copy of birth certificate is available in the record, from which, it reveals that the victim was born on 15/8/2004, which was issued by Changlang District Health Centre, Arunachal Pradesh, dated 12.11. 2008. The birth certificate of the victim has not been challenged in the case. It is only argued by the learned counsel for the appellant that though birth certificate was seized, it was not exhibited in the case.It is true that the birth certificate was not exhibited in the trial Court, but the Court can take a judicial notice of the fact, which is permissible in law. So, under the facts and circumstances of the case, the admitted fact is that the victim was minor at the relevant time of the alleged incident. 43. Sec. 29 of the POCSO Act deals with presumption as to certain offences, which reads as follows: "Sec. 29 - Where a person is prosecuted for committing or abetting or attempting to commit any offence Secs. 3, 5, 7 and Sec. 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." 44. 3, 5, 7 and Sec. 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." 44. A perusal of the aforesaid provision thus, shows that it is for the accused to prove the contrary and in case, if he fails to do so, the presumption would operate against him, leading to his conviction under the provision of the POCSO Act. It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that presumption under Sec. 29 is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Sec. 29 of the POCSO Act to operate. Otherwise, all that the prosecution would be required to do is to file a chargesheet against the accused under the provisions of the said Act and then claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Sec. 29 of the POCSO Act, cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with the procedure established by law. 45. The Hon'ble Bombay High Court in the case of Sachin Baliram Kamdev Vs. State of Maharashtra reported in (2016) All M R (Crl.) 4049, held in the context of presumption under Sec. 29 of the POCSO Act as follows:- "Thus, when a person is prosecuted for the commission of the offence specified in the said Sec. s, Court is required to presume that the said person has committed the said offence, unless the contrary is proved. The presumption, however, cannot be said to be irrebuttable. In fact, no presumption is irrebuttable in law as this cannot be equated with conclusive proof. The provisions of Sec. 29 of the POCSO Act mandates the Court to draw the presumption, unless the contrary is proved. One has to keep in mind as expressed by an eminent jurist that presumptions are bats in law. They fly in a twilight but vanish in the light of facts". 46. The provisions of Sec. 29 of the POCSO Act mandates the Court to draw the presumption, unless the contrary is proved. One has to keep in mind as expressed by an eminent jurist that presumptions are bats in law. They fly in a twilight but vanish in the light of facts". 46. In another judgment, in the context of presumption under Sec. 29 of the POCSO Act, the same Hon'ble High Court (Nagpur Bench) in case of Amol Dudhram Barsa--gade Vs. State of Maharashtra ; reported in Crl. Appeal No. 600/201, decided on 23/4/2018, held as follows: "The submission that the statutory presumption under Sec. 29 of the POCSO Act is absolute, must be rejected, if the suggestion is that even if foundational facts are not established, the prosecution can invoke the statutory presumption. Such a interpretation of Sec. 29 would render the said provision vulnerable to the vice of unconstitutionality. The statutory provision would stand activated only if the prosecution proves the foundational facts and then, even if the statutory presumption is activated, the burden of the accused is not to rebut the presumption beyond reasonable doubt. Suffice it if the accused is in a position to create a serious doubt about the veracity of the prosecution case or the accused brings on record material to render the prosecution version improbable." 47. In this context, the presumption under Sec. 29 of the POCSO Act has been dealt with by the Hon'ble Calcutta High Court in the case of Sahid Hussain Biswas Vs. State of West Bengal, reported in C.R.A. No. 736 of 2016 and C.R.A. No. 1035/2017, wherein it has been held as follows: "A conjoint reading of the statutory provisions in the light of the aforesaid would show that in a prosecution under the POCSO Act, the accused is to prove the contrary, i.e., he has to prove that he has not committed the offence and he is innocent. It is trite law that negative cannot be proved. 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 into shift the onus on the accused to prove the contrary. 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 into shift the onus on the accused to prove the contrary. Once the foundation of the prosecution case is laid by leading 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 would draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses though effective cross-examination or by patent absurdities or inherent infirmities in their version by an analysis of special features of the case..." 48. Keeping the aforesaid position of law in mind, the evidence of the prosecution witnesses in the present case will have to be examined. We have already discussed the evidence of witnesses, including the victim, which shows that the victim has categorically stated that the accused appellant is the person, who had committed sexual assault on her. Thus, by following the above well settled legal proposition, it would be correct to say that in a proceeding against an accused under the POCSO Act for committing or abetting or attempting to commit any offence under Sec. 3, 5, 7 and 9 of the Act, it would suffice if the accused is able to prove his innocence on the basis of preponderance of probabilities, yet this principle is not absolute in view of Sec. 30 of the Act, if it relates to proof relating to culpable mental state on the part of the accused, which the Court may presume. The accused, if he has to prove the absence of culpable mental state, has to prove it beyond reasonable doubt, and not based on preponderance of probability. The accused, if he has to prove the absence of culpable mental state, has to prove it beyond reasonable doubt, and not based on preponderance of probability. Sec. 30 of the POCSO Act reads as under: Sec. 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 n o such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this sec., 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 sec., "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. 49. It is, thus, an exception to the general norm that the burden on the accused to prove his innocence is based on preponderance of probabilities. In view of Sec. 30 (2) of the POCSO Act, he has to prove on the basis of proof beyond reasonable doubt, any fact to show non-existence of culpable mental state. One is thus, confronted with a situation, where the statute insists on the accused to prove the absence of culpable mental state, i.e., mens rea on the basis of proof beyond reasonable doubt under Sec. 30 (2) of the Act, whereas as per settled legal principle, the standard of proof of denying commission of the offence or disproving the foundational fact by the accused or his innocence will be proved by the standard of preponderance of probability. 50. In the present case, the appellant was charged and convicted for offence of rape as defined under Sec. 375 of IPC. The offence is as defined under Sec. 3 and 4 of POCSO Act, also covers almost all possible aspects of the offence of sexual assault, including rape as defined under Sec. 375 IPC. Thus, most of the principles as applicable to rape will also be applicable to the case under POCSO Act. 51. The offence is as defined under Sec. 3 and 4 of POCSO Act, also covers almost all possible aspects of the offence of sexual assault, including rape as defined under Sec. 375 IPC. Thus, most of the principles as applicable to rape will also be applicable to the case under POCSO Act. 51. As far as the present case is concerned, in view of the nature of the charge against the appellant, the prosecution has to establish the foundational fact that the appellant had sexually assaulted the victim girl within the meaning of POCSO Act. The appellant has been specially charged of inserting of his finger and male organ into the vagina of the victim girl. Though lack of consent of the victim girl could be another foundational fact, but in the present case, it will be irrelevant as the victim girl is a child, aged about 11 years and below 18 years as defined under Sec. 2 (d) of the POCSO Act and consent of a minor girl of 11 year is no consent in the eye of law. This is in consonance with the six descriptions mentioned under Sec. 375 of IPC, which provides that it amounts to rape if the sexual act is committed with or without consent, when the victim girl is below 18 years of age. In the present case, there is no dispute that the age of the victim girl was around 11 years when the incident occurred. As per birth certificate of the victim girl, she was born on 15/8/2004. The incident occurred on 7/8/2015. It transpires that the victim was around 11 years of age at the relevant time of the incident. 52. The star witness in this case is the victim girl and in fact, the conviction of the appellant is primarily based on the evidence of the victim girl. The victim was examined by the trial Court to ascertain whether she could understand properly and had the capacity to testify before the Court and the Court after being fully satisfied to do so, proceeded to examine her. She vividly described what the appellant had done with her on the fateful day. 53. The victim was examined by the trial Court to ascertain whether she could understand properly and had the capacity to testify before the Court and the Court after being fully satisfied to do so, proceeded to examine her. She vividly described what the appellant had done with her on the fateful day. 53. Though it is alleged that the victim is mentally retarded as per Medical Officer as well as her mother also stated that she was suffering from epilepsy, but the fact was not proved by producing any medical document that she was suffering from any mental disorder. The Medical Officer in his cross-examination has given clarification that he stated so as the victim was mentally retarded because she could not answer the question and that she only nodded her head, but it is also stated by the Medical Officer that the victim looked depressed. The Investigating Officer has also given some light on the nature of the victim by stating that she found that the victim girl could speak, but very slowly. Apart from that, the victim was examined by the Magistrate who recorded her statement under Sec. 164 Cr.P.C., but she did not mention anything regarding demeanor of the victim girl that she had been suffering from any such mental disorder. Under such background, it cannot be said that the victim could not understand the consequence of the situation. 54. As regards testimony of a minor girl, it has been held that evidence of a child witness cannot be discarded only on the ground of her being of a tender age, though the Court would be required to scrutinize the evidence with care and caution. Further, if the evidence had withstood the test of cross-examination and there is no infirmity in the evidence, then the conviction can be based upon such testimony alone. It has been also held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence and some discrepancies in the statement of a child witness, if not on material particulars, cannot be made the basis for discarding the testimony. It was thus held in the case of State of Maharashtra Vs. It was thus held in the case of State of Maharashtra Vs. Bharat Fakira Dhiwar; reported in (2002) 1 SCC 622 , which reads as follows: "..In the case of Panchhi v. State of U.P. reported in (1998) 7 SCC 177 , it has been held that it cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It was held that it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. It was held that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. It is held that it is more a rule of practical wisdom than a law. In the case of Suryanarayana v. State of Karnataka reported in (2001) 9 SCC 129 , it has been held that the evidence of a child witness cannot be discarded only on the ground of her being of teen age. It is held that the fact of a child witness would require the Court to scrutinise the evidence with care and caution. It is held that if the evidence is shown to have stood the test of cross-examination and there is no infirmity in the evidence, then a conviction can be based upon such testimony alone. It is held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. It is held that some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. It is held that discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness. It is held that while appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored" 55. As regards the law relating to conviction for the offence of rape on the basis of the sole testimony of the victim, it has been held that the same is permissible if the testimony inspires confidence and is found to be reliable. In the case of Madan Gopal Kakkar Vs. As regards the law relating to conviction for the offence of rape on the basis of the sole testimony of the victim, it has been held that the same is permissible if the testimony inspires confidence and is found to be reliable. In the case of Madan Gopal Kakkar Vs. Nabal Dubey; reported in (1992) 3 SCC 204 , it was held as follows: "There are a series of decisions to the effect that even in cases where there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of victim does not suffer from any basic infirmity and the probabilities' factor does not render it unworthy of credence and that as a general rule, corroboration cannot be insisted upon except from the medical evidence, where having regard to the circumstance of the case, medical evidence can be expected to be forthcoming." 56. In the case of Dola Vs. State of Orissa; reported in (2019) Vol. 3 SCC (Cri.) 239, it was held that "It is well settled law that the if the version of the prosecution is believed, the basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of conviction. Corroboration is not a sine qua non for a conviction in a rape case. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding." 57. Reverting back to the present case, the victim girl had made a statement under Sec. 164 Cr.P.C. The trial Court did not find inconsistencies between the said statement and the testimony before the Court and took the view that the statement made under Sec. 164 Cr.P.C corroborates her testimony. This Court has also not observed any noticeable discrepancies between these two statements, which is of any significance. The statement made under Sec. 164 Cr.P.C. was recorded after being satisfied that she was able to understand the questions being put. 58. PW-1, the mother of the victim, who is the informant of the case also stated that the victim reported the incident when she came back home in the afternoon and FIR was lodged accordingly, on the very same day. During her cross-examination, PW-1 could not be dented as regards the incident. 58. PW-1, the mother of the victim, who is the informant of the case also stated that the victim reported the incident when she came back home in the afternoon and FIR was lodged accordingly, on the very same day. During her cross-examination, PW-1 could not be dented as regards the incident. As per the statement of the Medical Officer he found some injury on the person of the accused appellant. On being asked, the accused appellant replied that he was assaulted by the mother of the victim and some other persons, but there is no explanation from the side of the accused appellant while deposing before the trial Court as DW-5 or while recording his statement under Sec. 313 Cr.P.C., why he had been assaulted by the mother of the victim on the date of the incident, causing injury on his person. 59. On a combined reading of evidence of the victim, PW-1 and the Medical Officer (PW-5) and the background of the case, this Court finds that the prosecution has proved that the victim girl was subjected to sexual assault by the appellant, which covers the offence under the provision of POCSO Act. In a case of this nature, one cannot expect an independent eye witness, since the culprits would take a chance only on the loneliness of the minor children and make use of their innocence and exploit them sexually. If the evidence of the interested witnesses are cogent, credible and trustworthy, conviction is permissible. In the instant case, the victim girl clearly narrated the said incident and also identified the accused appellant, who is their adjacent neighbor. At the cost of repetition, we should also mention that as per the statement of the Medical Officer, the accused appellant disclosed before him that he sustained injuries on his person as because he was assaulted by the mother of the victim and people of their locality and the probable cause is that as he was involved in the act of sexual assault upon the victim girl. 60. We do not find any material contradictions as regards the sequence of the occurrence, as also the identity of the accused appellant 61. The settled position of law is that even the statement of the victim in a case of sexual assault has to be critically appreciated with utmost sensitivity, keeping in view the broader probability of the incident. 60. We do not find any material contradictions as regards the sequence of the occurrence, as also the identity of the accused appellant 61. The settled position of law is that even the statement of the victim in a case of sexual assault has to be critically appreciated with utmost sensitivity, keeping in view the broader probability of the incident. It is understood when the mother of the minor girl would come forward in a Court to make humiliating statement against the honour of her minor daughter, such as, is involved in the commission of sexual assault on her minor daughter. It is beyond of imagination that the parents of the victim would manufacture a false case at the cost of assassinating the character of their own daughter. Though the victim was a minor girl but at any rate, she is a woman with all attributes, showing modest to her. 62. Under these circumstances, this Court being an appellate Court and as a fact-finding Court, re-appreciated the entire evidence independently and arrived at a just conclusion that the accused had committed sexual assault on the victim girl. 63. Under the facts and circumstance of the case, though this Court does not find any mitigating evidence to reduce the sentence imposed by the trial Court, but as it appears that as the victim was a minor aged about 11 years and the specific Act was introduced as POCSO Act, as such, we are of the considered view that the accused should be convicted under the provision of Sec. 4 of the POCSO Act, instead of Sec. 376 (2) (i) IPC. 64. In the result, appeal is dismissed. Conviction is confirmed under Sec. 4 of the POCSO Act, instead of Sec. 376 (2) (i) IPC. No separate sentence is imposed under Sec. 448 IPC. With the aforesaid modifications, appeal is disposed of. 65. Send down the LCR.