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2025 DIGILAW 1483 (RAJ)

Dhanraj S/o Shri Ramchandra v. State of Rajasthan

2025-08-20

AVNEESH JHINGAN, BALJINDER SINGH SANDHU

body2025
JUDGMENT : BALJINDER SINGH SANDHU, J. 1. The instant appeal is directed against the judgment dated 05.09.2019 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 and the Commission for Protection of Child Rights Act, 2005 No.2, Ajmer (hereinafter referred to as 'the trial court') in Sessions Case No.195/2018 (189/2017) (CIS No.195/2018), whereby, the accused appellant-Dhanraj has been convicted and sentenced as follows: Offences Sentence Fine Section 376 and 376(2)(i) IPC Life Imprisonment (which means rest of the period of his natural life) To pay a fine of Rs.50,000/-; in default thereof to further undergo 1 month's R.I. Section 363 IPC 07 Years' R.I. To pay a fine of Rs.5,000/-; in default thereof to further undergo 1 month's R.I. Section 323 IPC 01 Year's S.I. To pay a fine of Rs.1,000/-; in default thereof to further undergo 15 days' Additional Imprisonment. All the sentences have been ordered to run concurrently. 2. The facts giving rise to the present appeal are that a written report (Ex.P/1) was submitted by the complainant Banna Lal (PW- 3) son of Chhotu Ji Keer on 07.12.2016 to the SHO, Police Station Kekri, Ajmer to the effect that on 05.12.2016, his wife Mathura and his two children, son aged about 11 years and the daughter (victim) aged about 5 years, had gone to the house of his aunt-in- law (Bhua Saas) for a programme. When he was at work, his wife called him and asked as to whether their daughter 'M' was with him. Upon his denial, it was informed by his wife that she is not traceable. Complainant reached the place and started searching for his daughter in the village along with Bhopal Singh and it was also announced through the Masjid and all the villagers started looking for the girl child. However, after some time, Prahlad Ji Khati and Kailash Ji Keer came to the house with the girl, wherein, his wife was there, who grabbed her and saw that the victim was bleeding from private parts. The victim was taken to the Hospital in Juniya, however, due to public embarrassment, they chose not to approach the police. However, after some time, Prahlad Ji Khati and Kailash Ji Keer came to the house with the girl, wherein, his wife was there, who grabbed her and saw that the victim was bleeding from private parts. The victim was taken to the Hospital in Juniya, however, due to public embarrassment, they chose not to approach the police. His daughter informed him that she had gone with Devraj and Khushi and when she was returning after taking the toffee, one boy came to her and asked that he would buy her another toffee and took her towards Higher Secondary School side and took her into the bushes, removed her clothes and committed rape on her. When she tried to shout, her mouth was gagged and threaten to kill her. When her private parts started bleeding, the boy ran off leaving her in the bushes. Thereafter, he did not return and after some time, she saw a light, went there and found Prahlad, who took her to Kailash Keer's house and both of them, upon inquiring her father's name, brought her back to her house. It was further stated in the written report that the accused could not be traced. 3. On the basis of the written report, FIR No.848/2016 (Ex.P/3) was registered on 07.12.2016 at Police Kekri, District Ajmer against an unknown person for the offences under Section 3 76 IPC and Section 3 /4 of the POCSO Act and investigation commenced. 4. After conclusion of investigation, charge-sheet was filed against the accused and the learned Special Court framed the charges against the appellant for the offences under Sections 3 63 , 366A, 323 376, 376(2)(i)(j) IPC and Sections 3 /4 and 5(m)/6 of the POCSO Act. 5. On behalf of the prosecution, as many as 10 witnesses were examined and 21 documents were exhibited. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, the accused denied the same and claimed to be innocent and stated that on 05.12.2016, he was not in the village and had gone along with his wife to Gangoj and he has been falsely implicated in this case. In defence, the accused examined 05 witnesses and also exhibited 09 documents. In defence, the accused examined 05 witnesses and also exhibited 09 documents. After considering the oral as well as documentary evidence, and the testimony of the prosecutrix, who identified the accused and in view of the medical evidence available on record, proceeded to convict the accused appellant for the aforesaid offences and sentenced him as above. Hence, this appeal. 6. Learned counsel for the appellant, while laying challenge to the impugned judgment, has vehemently and fervently contended that the entire prosecution case is false and fabricated. While taking the plea of alibi, learned counsel submitted that the appellant was not in the village at the time of commission of the offence and had gone with his wife to her grandmother's place in Gangoj. Learned counsel further argued that the entire identification parade is fabricated and the victim was already shown the accused and the alleged identification is nothing but an eye-wash. Learned counsel further submitted that the alleged sketch, which was prepared, was not produced which further dents the prosecution story. So far as the medical evidence is concerned, learned counsel tried to refute the same while stating that the injuries were two days older and further, the report of the doctor, who had first examined the victim at hospital in Juniya, has not been produced nor that doctor was examined. Learned counsel further contended that important witnesses Devraj and Khushi who had accompanied the victim had not been produced nor Ramniwas was examined by the prosecution. Even, Kailash Chand (PW-4) and Prahlad (PW-5), who first came in contact with the victim, have turned hostile and thus, in light of the defence produced by the appellant, the prosecution has failed to bring home the charges against the appellant beyond reasonable doubt. 7 While inviting the Court's attention towards the statements of the prosecutrix, her mother Mathura and Sagar Mathur, Judicial Magistrate, it is stated that the identification parade in fact took place in the police station and, not in the central jail Ajmer, therefore, the sole basis of connecting the appellant with the offences alleged does not survive. On these grounds, he implored the Court to set aside the impugned judgment and acquit the appellant of all the charges. 8. On these grounds, he implored the Court to set aside the impugned judgment and acquit the appellant of all the charges. 8. In support of his arguments, learned counsel for the appellant has relied upon the following judgments: (i) Ravi @ Ravichandran vs. State Represented by Inspector of Police , (2007) 15 SCC 372 (ii) Randeep Singh @ Rana & Anr. vs. State of Haryana & Ors. (2024) INSC 887 (iii) Anand Ramachandra Chougule vs. Sidarai Laxman Chougala & Ors. (2019) 8 SCC 50 9. Per contra, learned Public Prosecutor opposed the submissions advanced by the learned counsel for the appellant and submitted that the trial court has committed no error in appreciating the evidence and convicting the appellant and there is no error of law or facts so as to warrant any interference in the impugned judgment. He argued that the story put-up by the prosecution has been thoroughly supported by the oral and documentary evidence recorded in the court. He stated that the victim was taken by the accused-appellant into the bushes and was raped. The accused-appellant was identified by the victim in the test identification parade, the Medico Legal Case (MLC report) clearly suggests injuries on the body of the victim, including a one inch injury on the genitals in perineal region which stretches upto the vagina. The medical evidence clearly connects the accused with the commission of crime. The accused had absolutely failed to create any reasonable doubt in the prosecution case while suggesting the defence of alibi taken by him. The contradictions alleged by the accused-appellant are minor in nature, which do not dent the prosecution case and hence, no interference is called for in the judgment passed by the learned trial court and the appellant, having committed a heinous offence against a five year old girl, has rightly been convicted and sentenced to imprisonment for the remainder of his life. 10 We have heard the rival submissions advanced at Bar by the learned counsel for the appellant as well as the learned Public Prosecutor. Perused the impugned judgment and the material available on record. 11. 10 We have heard the rival submissions advanced at Bar by the learned counsel for the appellant as well as the learned Public Prosecutor. Perused the impugned judgment and the material available on record. 11. At the first instance, this Court finds that so far as the victim is concerned, the prosecution has established that she was five years of age at the time of incident, by way of evidence in shape of the testimony of mother and father of the victim and the medical report (Ex.P/6) wherein the age of the victim has been mentioned to be five years. The defence has failed to rebut the same and hence, from the record, it is clear that the victim was minor at the time of the incident. 12. Further, the story set up by the prosecution is that the victim was taken by the accused-appellant towards the school, behind the bushes and was raped, which caused injuries on the private parts of the victim and thereafter, she was brought home by Kailash Chand (PW-4) and Prahlad (PW-5), and the prosecutrix identified the accused during the identification parade conducted in presence of the judicial magistrate. The prosecution story is duly supported by the evidence of the victim (PW-2), her mother (PW-1) and her father (PW-3). The prosecutrix in her statement has clearly stated that she was taken into the bushes by the boy and was raped there. She began to bleed and the accused fled the scene leaving her behind. Her statement is consistent with her earlier versions, which adds to its credibility. The place of occurrence, as identified by the prosecutrix, along with the medical evidence on record, further corroborates the manner in which the assault took place. The evidence of mother of the victim (PW-1) and father of the victim (PW-3) also duly supports the prosecution story. They have clearly stated in their statements that the victim had gone to attend a programme at his aunt-in- law's place at village Juniya from where, their daughter went missing and finally, she was brought home by Kailash Chand (PW- 4) and Prahlad (PW-5). At that time, blood was oozing out of private parts of the victim, and on reaching home she narrated the entire incident. At that time, blood was oozing out of private parts of the victim, and on reaching home she narrated the entire incident. In this way, prosecution has established the fact that the victim was taken by the accused-appellant and was sexually assaulted, and the defence has not been able to impeach the credibility of the witnesses. 13. Learned counsel for the accused-appellant argued that Kailash Chand (PW-4) and Prahlad (PW-5), who had brought the victim home after the incident had turned hostile and further, in the absence of the evidence of Devraj, Khushi and Ramniwas, the prosecution has failed to establish the story put-forth by it. On examining the statement of Kailash Chand (PW-4) and Prahlad (PW-5), we see that even if the aforementioned witnesses have been declared hostile, their testimony cannot be automatically thrown out, as bare perusal of their statements, reveals that they had found the girl, brought her home and left her with her mother. At that time, her feet and clothes were covered with mud and she was crying. Kailash Chand (PW-4) has also admitted a significant portion of his police statement (Ex. P/8), which pertains to the incident narrated by the victim. Thus, a careful examination of the testimony of the aforementioned witnesses, along with the surrounding circumstances and all other evidence on record, presents a complete picture, and the statements can be relied upon to support the prosecution’s case. It is a well-settled principle of law that the testimony of a hostile witness is not rendered wholly inadmissible, and such portions of the evidence which are found to be credible and duly corroborated may be accepted and relied upon, subject to careful judicial scrutiny. The argument of the counsel for the appellant does not hold the ground. Reliance can be placed on the judgment of the apex court in Selvamani v. State Rep. by the Inspector of Police , 2024 INSC 393 , where in the evidentiary value of testimony of the hostile witnesses was considered by the Hon'ble supreme court, and it was held as under :- 9. Reliance can be placed on the judgment of the apex court in Selvamani v. State Rep. by the Inspector of Police , 2024 INSC 393 , where in the evidentiary value of testimony of the hostile witnesses was considered by the Hon'ble supreme court, and it was held as under :- 9. A 3-Judge Bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh, relying on the judgments of this Court in the cases of Bhagwan Singh v. State of Haryana, Sri Rabindra Kuamr Dey v. State of Orissa, Syad Akbar v. State of Karnataka, has held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross- examined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. 10. This Court, in the case of C. Muniappan and Others v. State of Tamil Nadu, has observed thus: “81. It is settled legal proposition that: (Khujji case, SCC p. 635, para 6) ‘6. … the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.’ 82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 ] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543 ], Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516], Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450 ], Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360 ] and Subbu Singh v.State, (2009) 6 SCC 462 . 83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.” 14. Another argument of the learned counsel for the appellant is that the test identification parade was in fact conducted in police station and the accused-appellant was already shown to the victim, and therefore it is sham. While considering this argument, it is seen that the test identification parade was conducted in the central jail vide Ex.P/21 and the accused-appellant Dhanraj was identified by the victim 'M'. The same was conducted in presence of the Judicial Magistrate No.1, Ajmer, Shri Sagar Mathur (PW-10) who, in his statement, has clearly stated that the accused was identified by the victim. The argument of the counsel for the appellant is that in his chief examination PW-10 has stated to have conducted the identification parade in the police station, simply cannot be accepted as the witness has clearly stated that the identification parade has been conducted in the “FIR No.848/2016 of Police Station Kekri”, it was never said by the witness that the same has been conducted in the Police Station Kekri. Further, there is no contradiction in the cross-examination of this witness which can be of any help to the defence. Ex.P/21 also bears the signature of the Jailer, Central Jail, Ajmer. The identification of the accused by the victim also finds support from the evidence of the Investigating Officer Hariram (PW-8) who specifically stated that the identification was duly conducted after obtaining the order from the Chief Judicial Magistrate and his statement in the cross- examination remained unshaken. Ex.P/21 also bears the signature of the Jailer, Central Jail, Ajmer. The identification of the accused by the victim also finds support from the evidence of the Investigating Officer Hariram (PW-8) who specifically stated that the identification was duly conducted after obtaining the order from the Chief Judicial Magistrate and his statement in the cross- examination remained unshaken. Although in this regard suggestions have been given to the prosecution witnesses, but these suggestions have been neither substantiated nor corroborated, and there is no coherence of those suggestions with the identification parade, as there is no remark in column No. 10 of test identification parade regarding previous discloser of the appearance of the accused to victim or any other similar note/remark in this regard in Ex.P/21, even the accused has not given any explanation in his statements u/s 313 Cr.P.C regarding test identification parade. 15. The vague defence was put up by the accused that the victim failed to recognise him in the village on 08.12.2016. It is argued that all the villagers were rounded off after the incident on 08.12.2016 and villagers including Dhanraj was shown to the victim, who was standing on the bonnet of vehicle, and she failed to recognise the accused at that time. DW-2 Nandram and DW-3 Ramniwas have been produced, to support the above mentioned fact. It is important to recognize that in any legal proceeding, each party presents its own version of events, but the court has to consider the version that is objective, supported by credible evidence, and factually accurate. It is worthy to consider here that after going through the witnesses examined in this regard, it is clear that the visibility of the accused itself is under grave suspicion. Moreover, it is not the case that the crowd was asked to line up including the accused, and the victim was asked to identify from the concourse. Furthermore, it is unreasonable to expect a five year old girl, who was in a state of mental shock just two days after being raped, to identify the accused from a concourse. The statements of the defence witnesses itself do not support the claim that the identification parade took place on the said date. Furthermore, it is unreasonable to expect a five year old girl, who was in a state of mental shock just two days after being raped, to identify the accused from a concourse. The statements of the defence witnesses itself do not support the claim that the identification parade took place on the said date. Moreover, DW-3 states that he along with other villagers, agitated the arrest of the accused on 08.12.2016, whereas the accused was arrested on 05.02.2017, which makes his testimony incredible and story of defence vague. The defence put up cannot stand in light of the strong and credible evidence produced by the prosecution. Therefore, the story of identification of the accused in the village on 08.12.2016 falls to the ground. 16. The argument of non production of the sketch by prosecution is also of not much help to the appellant as it reveals from record that there is an independent unblemished evidence available regarding allegations & the prosecution has proved it’s story beyond reasonable doubt. 17. The counsel of the appellant has further argued that there are several contradictions and discrepancies in the statement of prosecution witnesses, which have dented the prosecution story. The Hon'ble Supreme Court while dealing with the inconsistencies and discrepancies in the evidence of the prosecution story in the case of Goverdhan vs. State of Chhattisgarh , 2025 INSC 47 in para Nos. 54 and 55 , has held as under :- “54. We must also remember that the scene of the crime was in a rural area and the witness being rustic, their evidence has to be appreciated in the light of the behavioral pattern in the rural environment. In this regard, we may refer to the decision of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (supra) wherein it was held that: “8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioral pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioral pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. Certainly, the court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanor and delivery, of reading the straight forwardness and doubtful candour, rustic naiveté and clever equivocation, manipulated conformity and ingenious inveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at legitimate conclusions as the court of first instance. Nor can we make a fetish of the trial Judge's psychic insight.” 55. This Court also reminded that while dealing with the evidence of witnesses who are rustic, because of minor inconsistencies, the evidence should not be ignored. It was held in in Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127 wherein dealing with witnesses from rustic background it was observed as follows; “18. It is a common phenomenon that the witnesses are rustic and can develop a tendency to exaggerate. This, however, does not mean that the entire testimony of such witnesses is falsehood. Minor contradictions in the testimony of the witnesses are not fatal to the case of the prosecution. It is a common phenomenon that the witnesses are rustic and can develop a tendency to exaggerate. This, however, does not mean that the entire testimony of such witnesses is falsehood. Minor contradictions in the testimony of the witnesses are not fatal to the case of the prosecution. This Court, in State of U.P. v. M.K. Anthony [State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 : 1985 SCC (Cri) 105], held that inconsistencies and discrepancies alone do not merit the rejection of the evidence as a whole. It stated as follows : “10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well- wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible.” (Emphasis supplied) 18. While considering the evidence produced by the prosecution in light of the law laid down by the Hon'ble Apex Court, it is seen that there is no doubt that there are certain discrepancies in the statement of the witnesses, but their evidence has to be appreciated in light of the victim’s tender age and rustic back ground of her parents. The statements of the prosecutrix and other witnesses of the prosecution are in line with the prosecution story. The medical examination duly proves the sexual assault on the victim ‘M’ and the accused has been duly identified. From over all scrutiny of the statements, it can be safely said that the such contradiction or discrepancies are minor in nature and not to go to the roots of the matter so as to demolish the entire prosecution story. 19. While examining the medical evidence, Dr. Archana Mittal (PW-7), who had examined the victim on 07.12.2016, in her statements, has clearly stated that there were several injuries on the body of the victim. Further, there was an injury on the private parts of the victim of one inch at the perineal region which stretched upto the vagina and there was puss formation and maggots in the same. She has clearly deposed that the injury on the genitals was caused due to the attempt of sexual intercourse. She has admitted to have prepared the medical report (Ex.P/6) and the injury report (Ex.P/11). Her evidence establishes the fact that there was forcible sexual intercourse with the prosecutrix which led to injury on the genitals. Further, PW-6 Dr. She has clearly deposed that the injury on the genitals was caused due to the attempt of sexual intercourse. She has admitted to have prepared the medical report (Ex.P/6) and the injury report (Ex.P/11). Her evidence establishes the fact that there was forcible sexual intercourse with the prosecutrix which led to injury on the genitals. Further, PW-6 Dr. Jhoomarlal, who examined the accused, clearly stated that as per his examination (Ex.P/10), the accused is potent and competent to have sex. The medical report clearly shows the sexual assault having been committed upon the victim, and in light of specific statement of the prosecutrix and the test identification parade, it is proved beyond reasonable doubt that the same was committed by Dhanraj, the accused-appellant has been clearly connected with the commission of the offence. 20. Now, we deal with the plea of alibi that has been put forth by the accused-appellant. The learned counsel for the accused- appellant has contended that the plea of alibi was not properly appreciated and considered specially with reference to the testimony of DW.1-Leela, his wife and DW.4-Ramchandra, the father of the accused. It is a well-settled principle of law that when an accused takes the plea of alibi, the burden lies upon him to establish the same by cogent and positive evidence, once the prosecution has discharged its onus of proving his presence at the place of occurrence. The law on this issue has been settled by Hon'ble Supreme Court in the case of Binay Kumar Singh v. State of Bihar , (1997) 1 SCC 283 and Vijay Pal v. State (Govt. of NCT of Delhi), (2015) 4 SCC 749 , that so far as defence of plea of alibi is concerned, it is required to be proved by leading cogent evidence and it cannot be proved by preponderance of probabilities. 21. In support of the defence, DW-1-Leela, the wife of the accused, has been examined, who deposed that on the date of the incident they had gone to Village Kumariya to visit her grandmother-in-law’s residence and had returned at about 9:30 p.m. The same fact has been stated by DW.4-Ramchandra, who is father of Dhanraj. Both the witnesses are interested witnesses being close relatives, and there is no other independent corroborative piece of evidence produced by the accused- appellant. Both the witnesses are interested witnesses being close relatives, and there is no other independent corroborative piece of evidence produced by the accused- appellant. The evidence that has been adduced by the accused to prove the plea of 'alibi' is sketchy and lacks the convincing quality necessary to raise a reasonable doubt in the mind of the Court. The accused has not established his alibi with such certainty as to eliminate the possibility of his presence at the scene of the crime. The onus on the accused to prove alibi is considerable, requiring a high degree of assurance. Further the defence has failed to prove the story of false implication due to prior enmity with the family of the prosecutrix and for extortion of money, as no cogent evidence has been produced with regard to the same. The trial court after considering the statements of the defence and looking to their different stands, has rightly discarded the story of defence put up by the accused, and there is no valid ground for interfering with the findings. 22. Now we advert to the presumption under Section 29 of POCSO Act, 2012. The Hon'ble Supreme Court in the case of Pappu vs. The State of Uttar Pradesh , (2022) 10 SCC 321 , has held as under :- “32. For what has been discussed herein-above, it is also but clear that the foundational facts of the offences alleged against the appellant have been established. In the given set of circumstances, it could safely be said that the presumption contemplated by Section 29 POCSO came into operation and the burden came staying with the appellant; and it was for him to rebut the presumption and to prove that he had not committed the offence. The appellant has failed to discharge this burden. Viewed from this angle too, the decisions in Noor Agha and Justin (supra) do not come to the rescue of the appellant; rather on the principles stated therein and in terms of Section 29 POSCO, the presumption would only lead to the finding of guilt against the appellant.” 23. The appellant has failed to discharge this burden. Viewed from this angle too, the decisions in Noor Agha and Justin (supra) do not come to the rescue of the appellant; rather on the principles stated therein and in terms of Section 29 POSCO, the presumption would only lead to the finding of guilt against the appellant.” 23. The above quoted views of the Hon'ble Apex Court elucidate the position of law insofar as presumption under Section 29 of the POCSO Act is concerned, it becomes clear that even though 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 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. 24. While examining the case in hand, in light of the law settled by the Hon’ble Supreme court, we find that in view of the findings recorded in the forgoing paras, it is clear that the prosecution has clearly established the foundational facts of the case that the prosecutrix was taken behind the bushes and was raped and later the accused was identified by the prosecutrix in the identification parade, and the same is supported by oral and documentary evidence, which has remained unimpeached. The accused has failed to establish his defence and the plea of ‘Alibi’ in the absence of cogent evidence. He has also failed to create a serious doubt about the veracity of the prosecution's case or to adduce any material evidence to render the prosecution's version highly improbable. The accused has failed to establish his defence and the plea of ‘Alibi’ in the absence of cogent evidence. He has also failed to create a serious doubt about the veracity of the prosecution's case or to adduce any material evidence to render the prosecution's version highly improbable. Section 29 of the POCSO Act establishes a statutory presumption of guilt for specific offences under Sections 3 , 5, 7 and 9, which raises presumption that the accused has committed the act unless the contrary is proven. Once the presumption got triggered, it was upon the accused to have rebutted the presumption by way of leading evidence which the accused has completely failed to do so. In view of the same the presumption under Section 29 raised against the accused has remained unrebutted and he is deemed to be guilty of the offence under the POSCO Act. 25. Reliance has been placed by the counsel for appellant upon various judgments of the Hon’ble Supreme Court to support his contentions. The judgment of Ravi @ Ravichandra (supra) has been relied to substantiate his argument that the conviction cannot be based on vague identification. In that case the photographs of the accused were published in local daily prior to identification, which is not the case in the present appeal, specially when the defence has failed to prove that the accused was shown to the prosecutrix prior to identification parade. Further, counsel has relied upon the judgments of Hon’ble Supreme Court passed in Randeep Singh v. State of Haryana and Anand Ramachandra Chougule v. Sidara Laman Chougala (supra), but however the judgments cited pertains to a wholly different factual scenario and, therefore, does not have any direct applicability to the present case It is a settled position of law that precedents must be applied with due regard to the factual context in which they were rendered, as held by the Hon’ble Supreme Court in Bharat Petroleum Corporation Ltd. v. N.R. Vairamani , (2004) 8 SCC 579 . Thus, the reliance placed by the appellant on such precedents is misplaced and untenable in the present factual matrix. 26. In wake of the discussion made herein above, we are of the firm opinion that the conviction of the accused appellant as recorded by the trial court vide the impugned judgment is based on a thorough and apropos appreciation of evidence available on record. 26. In wake of the discussion made herein above, we are of the firm opinion that the conviction of the accused appellant as recorded by the trial court vide the impugned judgment is based on a thorough and apropos appreciation of evidence available on record. The impugned judgment dated 05.09.2019 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 and the Commission for Protection of Child Rights Act, 2005, No.2, Ajmer in Sessions Case No.195/2018 (189/2017) (CIS No.195/2018) does not suffer from any illegality or infirmity whatsoever warranting interference therein. 27. Thus, the appeal fails and is hereby dismissed as being devoid of merit. 28. Record be returned to the trial court forthwith.