The State v. Dinesh Poddar And ORS

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE AMRITA SINHA AND HON'BLE JUSTICE UDAY KUMAR CRA (DB)/5/2023 [ IA No: CRAN/1/2024 ] THE STATE ...

APPELLANT

VERSUS

DINESH PODDAR AND OTHERS ...

RESPONDENTS For the State :

Mr. Sumit Karmakar For the Respondent nos. 1-2 :

Mr. Arul Prasanth For the Respondent nos. 3-4 :

Ms. Dolly Sarkar For the Respondent nos. 5-7 :

Mr. Rakesh Pal Gobind Mr. K. M. Sheheer Heard on :

09.12.2024 and 10.12.2024 Judgment on :

16.12.2024 AMRITA SINHA, J.

1.

The appeal is at the instance of the State challenging the judgment of acquittal of the accused charged under Sections 4/6/17 of Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as 'POCSO Act') read with Sections 3/4/5 of Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'IT Act'). 2.

While deciding an appeal from acquittal certain points are to be kept in mind. Some of them are- (i) Comprehensive appreciation of evidence both oral and documentary; (ii) if two views are possible, the one in favour of the accused shall ordinarily be followed; (iii) mere possibility of a contrary view shall not justify the reversal of acquittal; (iv) for reversing acquittal to conviction patent illegality, perversity, error in law and in fact have to be demonstrated; (v) there should not be any possibility of hypothesis.

3.

The appellate Court is required to keep in mind that there is double presumption in favour of the accused. First is, presumption of innocence available under the fundamental principle of criminal jurisprudence and second, on acquittal, presumption of innocence is reinforced, reaffirmed and strengthened by the judgment and finding of the Trial Court. A decision of acquittal ought not to be lightly disturbed. Total re-appreciation of evidence only to arrive at a different finding, may result in gross miscarriage of justice.

4.

Since the offence is judged under the POCSO Act, the presumption of innocence, as available in criminal jurisprudence, has to be adjudged from a different angle. The accused is entitled to rebut the presumption and may do so by not relying upon any defence

witness but pointing out the loopholes in the evidence given by the prosecution witness. Law permits the accused to remain silent. Section 29 of POCSO Act mandates the Court to draw presumption unless contrary is proved. It is the burden of the accused to prove his innocence and the prosecution is required to prove the guilt beyond reasonable doubt.

5.

Keeping the aforesaid cardinal principles in mind, I will now proceed to decide as to whether the judgment of acquittal impugned in the appeal requires interference or not.

6.

To prove an offence under POCSO Act the age of the victim girl is required to be proved. In the instant case, the victim girl has deposed that she was about sixteen years of age when the evidence was recorded by the learned Court. In the cross-examination the victim girl has deposed that sexual relationship with the accused was established when her age was sixteen years. She could not state either the date or the month or the year of committing such act. She claimed her date of birth as XX.XX.2002. The birth certificate was not in her possession, she stated that her date of birth was not stated by anybody to her but she is aware of her date of birth. How she could ascertain her age on her own is a mystery.

7.

The date of birth of a child is usually ascertained from the birth certificate issued by the competent authority either at the time of birth

or immediately thereafter upon information provided by the mother or father and in the absence of the parents, the relatives of the new born. In the absence of any of the aforesaid persons, the date of birth is intimated to the competent authority by the hospital or clinic where the birth takes place. This vital piece of evidence is a special information usually in the knowledge of the aforesaid category of persons. 8.

A person, on his own, cannot have knowledge of his date of birth. Only when he gets information from any of the above sources that a person acquires knowledge of his date of birth. The victim girl has not relied on any of the above to prove that the date of birth stated by her is proper.

9.

It appears from record that the Investigating Officer during the course of investigation collected a photocopy of the birth certificate from the office of the Registrar of Births and Deaths on 23rd May, 2017. The date of birth of the victim girl is recorded as XX.XX.2002. The registration of birth was made on XX.XX.2002. The document is a computerized one. The prosecution failed to prove that the said document was actually obtained from the office of the Registrar of Births and Deaths. No evidence whatsoever was adduced to prove the genuinity of the said document.

10.

The teacher-in-charge of the school where the victim girl claimed to have studied till class V deposed that he supplied the bio-data of the

victim girl to the Investigating Officer under his seal and signature after verification of the documents supplied at the time of admission of the girl. He deposed that he was not posted in the school at the time of admission of the girl in the school on 30th April, 2008 and he did not cross verify the said documents from the issuing authority. He categorically deposed that he was not aware about the genuineness of the subject documents. He admitted providing a photocopy of the birth certificate along with the bio-data with a forwarding letter, but the birth certificate was not signed by him. He could not depose, with certainty, as to whether the birth certificate available in the case diary is the one which he supplied to the Investigating Officer after making photocopy from the school register.

11.

The medical officer who examined the victim girl recorded her age as fifteen years. The medical officer has deposed that there was no supporting document in respect of the age of the victim. The medical certificate signed by the medical officer contained a note that the age of the girl is to be ascertained by specialized investigation at G.B. Pant Hospital, Port Blair. The said officer did not vouch for the age of the victim girl.

12.

It appears that the issue as to whether the victim girl was a minor or not was never raised by the defence, but it is the duty of the prosecution to prove the age of the victim in a case under POCSO Act.

From the facts recorded hereinabove, it is clear that the age of the victim girl is under a cloud. For application of provisions of POCSO Act, the age of the victim girl is extremely vital and relevant. POCSO Act will be applicable only if the child is below the age of eighteen years. 13.

Here, the victim deposed before the Court in the month of August, 2017 claiming to be sixteen years of age alleging that the incident of aggravated penetrative sexual assault continued for the last four years. Going by the statement of the victim girl such incident took place when she was approximately twelve years of age. Though the victim girl deposed with conviction with regard to the period for which such type of incidents continued at the hand of the accused, but she failed to recollect or mention any particular date of any such incident. Neither the date nor month or time of the first incident or the last one could be recollected by the victim girl. A block period has been mentioned devoid the specifics.

14.

The victim certainly has a right to forget the specific date, time or year of such heinous crime and there is nothing abnormal in it considering her tender age but she has also failed to recollect as to who committed such act upon her for the first time. Only deposing that the acts took place for the last four years devoid any details, in my opinion, is not enough to convict an accused. To pin an accused under POCSO Act, the prosecution ought to have collected better evidences.

15.

The medical certificate of the doctor who examined the victim girl carries great evidentiary value. The doctor mentions the age of the victim girl to be fifteen years on 18th April, 2017 and notes that the said age is to be ascertained by specialized investigation. The doctor records that the hymen of the victim girl was absent and she was habituated of sexual intercourse. No mark of violence was found in or around her vagina or on her body and around her genital region. Her pubic hair and vaginal swab were collected, sealed in test tube and handed over to the police.

16.

The medical reports of the accused were exhibited. No mark of inflammation or violence was found in the penis of any of the accused. All the accused were found to be capable of sexual intercourse. No smegma, stain of blood or semen was found on any of the accused. The medical officer who collected the pubic hair of the accused in vacuum containers was examined. In cross-examination the doctor deposed that he cannot recollect whether there was any specific mark on the vacuum container in which the pubic hair of the accused was collected. The doctor deposed that soon after sexual intercourse smegma is not present on the coroner glands of the penis. During masturbation the smegma may remain or get spread or scattered till it is washed. The note containing the voluntary depositions before the doctor were not part of the medical examination but were a part of medical history. The

doctor could not identify the containers in which the pubic hair of the accused persons was collected.

17.

From the medical documents of either the victim girl or the accused, offence under the POCSO Act cannot be inferred, far less proved.

18.

The place of occurrence of the heinous act has also not been proved. At one place the victim girl deposed that the act of aggravated penetrative sexual assault took place in the room where her mother resides with her step father. She deposed that there is only one room where her mother resides and it is inside that room that the offence took place on regular basis for months and years together by several male members. The victim girl has also deposed that there are several houses by the side of her mother's room. It was the duty of the prosecution to get the room identified by the victim girl and the Investigating Officer ought to have examined the room for collecting evidence. The same has not been done.

19.

The victim girl has also deposed that the first incident of sexual assault took place in an agricultural field. The distance between the field and house of the mother of the victim girl is not known to the victim girl. The manner in which the victim girl reached the agricultural field from her mother's house and vice versa is not disclosed. The prosecution has not cared to examine the said places of occurrence of

the offence. The site plan/sketch of the places of occurrence has not been produced to prove the place of occurrence of the offence. From the evidences placed before the Court, the place of occurrence of the crime cannot be said to be proved.

20.

There are inconsistencies galore in the depositions of the prosecution witnesses. No reason has been mentioned to justify the delay in lodging the complaint after four years from the date of commission of the offence for the first time. There is confusion with regard to the person accompanying the victim girl for lodging the complaint. There are whole lot of persons with whom the victim girl alleges to have forcible sex. The prosecution miserably failed to prove the guilt against any one of them.

21.

Section 24 (2) of POCSO Act mandates that the police officer while recording the statement of the child shall not be in uniform. The victim girl has clearly deposed that the police officer recording her statement was in uniform and she could identify her only because of the uniform that she was wearing. The prosecution has failed to act in terms of the POCSO Act. The same is a statutory lapse in the investigation.

22.

Section 23(3) of POCSO Act prescribes that the medical examination shall be conducted in the presence of the parents of the child or any other person in whom the child reposes trust or

confidence. The victim girl has deposed that nobody from her house was present when her medical examination was performed. The prosecution witness no. 2 S. Laxmi deposed that the vaginal swab and pubic hair of the victim girl has been seized in her presence. She was not inside the room when the victim girl was medically examined. She was standing outside the said room. S. Laxmi deposed that Gouri the maternal aunt of the victim was inside the medical examination room. Gouri has not deposed about her presence when medical examination of the victim girl was done.

23.

The prosecution witness no. 5 Manju Devi deposed that she was posted at the Community Health Centre, Rangat and was discharging afternoon duty on 18th April, 2017, the day when the incident was reported to the police. The victim girl was taken to the labour room for medical examination and one lady relative of the victim girl was present when the vaginal swab and pubic hair of the victim girl was collected. Manju could not specify whether the lady was a relative of the victim girl or not.

24.

From the aforesaid evidences and documents it cannot be ascertained as to whether there was any person, in whom the child reposes trust and confidence, present at the time of medical examination. The identity of the said person, if at all, could not be

proved. There are contrary evidences given by the victim girl and the prosecution witnesses.

25.

In the case at hand, the victim girl has accused her mother for forcing her to have sex with several male persons in lieu of money. Charges have been framed under the IT Act against the accused. To prove such allegation the prosecution ought to have proceeded to produce evidence that money was collected from the male persons for having sex. There is no evidence on record that the victim girl was forced or induced to have sex by her mother and her mother lived out of the earnings of such prostitution. Though the victim girl on repeated occasions deposed that her mother used to live out of the earnings by forcing her into prostitution, but the prosecution miserably failed to prove such allegation.

26.

The victim girl has deposed that Dinesh Poddar, one of the accused was known to her. She denied that there was any love affair between Dinesh and herself. Dinesh wanted to marry her and she did not raise any objection to the marriage. The victim girl in her crossexamination admitted that her marriage was solemnized with Dinesh and she resided with Dinesh as husband and wife after marriage. Her step father forcibly took her away from the house of Dinesh but Dinesh tried to bring her back on several occasions. She deposed that she entered into physical relationship with Dinesh as her husband and she

intends to live with Dinesh as husband and wife. She does not have any objection if Dinesh is acquitted from this case. 27.

In the cross-examination of the victim girl by the defence side for Ganesh Poddar one of the accused, the victim girl deposed that the family members of Dinesh Poddar raised objection of her marriage with Dinesh. Ganesh and Dinesh are two brothers. Ganesh also raised objection to her marriage with Dinesh. The victim girl deposed that Ganesh has committed rape on her.

28.

The prosecution witness no. 14 Parvesh deposed that he was posted at Rangat PS, as Sub Inspector of Police and was entrusted with the duty of investigation of the case. During investigation he collected the copy of the birth certificate of the victim girl from the office of the Registrar, Births and Deaths and the said document is exhibited as Exhibit P-19. In cross examination he submitted that he did not obtain any certificate under Section 65 B of the Evidence Act along with the birth certificate. He had no occasion to verify from the main server of the computer whether the said document is true or not. He admits that the victim girl was not taken for ossification or molar test. 29.

Section 13 of the IT Act mandates that for dealing with the offences under the Act there shall be special police officer appointed by or on behalf of the Government not below the rank of an Inspector of Police. In the case at hand the police officer was not appointed as the

special police officer by the Government and was below the rank of the Inspector of Police. The same implies that there was statutory lapse on the part of the prosecution.

30.

From the above it is evident that there are gaping holes in the evidences that have been garnered at the time of conducting investigation in respect of the charges leveled against the accused. The evidences, both oral and documentary taken together, does not lead to any conclusive finding as regard the guilt of the accused. 31.

The learned Trial Court appears to have scanned the evidences meticulously and has come to a considered opinion that there are reasonable doubts in the story of the prosecution and the chain of prosecution is not complete to attract the guilt of the accused beyond reasonable doubt.

32.

In the absence of confirmed proof on the part of the prosecution in support of the charges leveled, it will be highly improper to dislodge the findings of the learned Trial Court with fresh findings. The prosecution ought to have handled the case in a more professional manner by a competent police officer. Not collecting proper evidences at the right time from the right place has led to complete failure of the prosecution to bring home the charges leveled against the accused. 33.

Though the learned public prosecutor has tried to convince the Court that the deposition of the victim girl is trustworthy and

convincing and there may be minor contradictions in the depositions but the entire evidence ought not to fail for the same. It has been submitted that the presumption of innocence and benefit of doubt cannot be made in favour of the accused in a proceeding under the POCSO Act. The defence witnesses failed to disprove the allegations leveled against the accused. The burden to prove innocence lies upon the accused.

34.

It is true that the accused did not produce any evidence in their support but it is also true that the defence has been successful in disproving the allegations made against the accused from the evidence and the depositions of the prosecution. The presumption under Section 29 of the POCSO Act is a rebuttable one and in the instant case the defence has been successful in rebutting the same. 35.

In view of the discussions made hereinabove, I am not inclined to interfere with the judgment impugned and do hereby affirm the same. The appeal fails and is hereby dismissed. Accordingly, CRAN/1/2024 is disposed of.

( Amrita Sinha, J.) UDAY KUMAR, J.

36.

The instant appeal has been preferred by State (UT of Andaman and Nicobar Islands) under Section 378 (1)(b) of the Code of Criminal Procedure against the judgment of acquittal of accused Dinesh Poddar,

Ganesh Poddar, Bindu Sikdar, Usha Hawladar, Paritosh Par, Mrinal Dhali and G. Rajendran from the charges under Sections 4/6/17/21 of Protection of Children from Sexual Offence Act, 2012 read with Section 3/4/5 of Immoral Traffic (Prevention) Act, passed by learned Court of Special Judge (POCSO) at Port Blair on 22.08.2023, in connection with Special POCSO Trial No. 45 of 2017 arising out of Rangat Police Station case No. 58 of 2017 dated 18.04.2017.

37.

Briefly stated the victim girl resided with her father, mother and grandmother at Bishnupur. Her father went somewhere leaving them alone. Thereafter, her mother married to Chitranjan Par of Parnashala about four years prior to this occurrence and started to live with him at Parnashala. Victim girl used to visit her mother at Parnashala. She was ravished there by her step father Chitranjan Par, step brother Paritesh Par, Mrinal Dhali and Raja and other accused persons in the house of her mother and at agricultural field near her house. She was usually compelled by her mother and step father to make physical relationship with persons who were not known to her. Her mother left victim girl in the house of Deenu, where Deenu and his brother Ganesh sexually assaulted her. Anyhow, she managed to flee from their grip and narrated everything to Champa Parmananda and S. Laxmi. They helped her to file written complain to the Police Station upon which Rangat Police Station case No. 58 of 2017 dated 18.04.2017 under

Sections 4/6/17/21 of POCSO Act and 3/4/5 of Immoral Traffic (Prevention) Act, 1956. was started against Bindu Sikdar, Chitranjan Par, Paritosh Par, Mrinal Dhali, Raja, Deenu, Ganesh, grandmother and others. The investigation was culminating into charge sheet, filed on 13.06.2017 under Sections 4/6/17 of POCSO Act read with Sections 3/4/5 of Immoral Traffic (Prevention) Act, 1956. 38.

After completion of all legal formalities, learned Special Judge has taken cognizance of the offence against the accused persons, framed charge against them, recorded evidence of the witnesses, explained the circumstances came against the accused persons during trial under Section 313 of the Code of Criminal Procedure, heard the submission of learned Advocate for both sides and passed the impugned order, whereby accused persons were acquitted as prosecution failed to bring home charges against them beyond reasonable doubt.

39.

The said order of acquittal has been challenged by State after obtaining leave on January 11, 2024, prefer appeal against acquittal as per section 378 of Code of Criminal Procedure. Hence, this appeal. 40.

Mr. Sumit Karmakar, learned Public Prosecutor for the appellant submitted that :

(i) There is no inconsistency in the statement of victim girl made in the written complaint, recorded by learned Magistrate

under Section 164 of the Code of Criminal Procedure and deposed before the Trial Court as PW-1. The victim girl was minor. There is no reason to disbelieve her statement. (ii) The victim girl was continuously ravished by respondent at Parnashala. Many person established physical relationship with her during a long span of time. So she was unable to give any specific date and time of the incident. She could not reveal the incident to anyone out of fear of her mother. Finally, she dare to lodge FIR with assistant of Champa Parmananda and S. Laxmi when they came to know about her agony.

(iii) In case of allegations under Section 3/5/7/9 of POCSO Act the Special Court shall presume that such persons has committed or opted to commit the offence as the case may be, unless the contrary proved. The burden is on the accused to rebut the presumption is that they committed, abated or attempted to commit the offence as no contrary has been proved in this case.

41.

Minor contradiction on facts are there but they are not fatal for the case of prosecution rather it is natural. 42.

Per contra, Mr. Rakesh Pal Gobind, learned Advocate for the respondent submits that.

(i) Prosecution failed to prove the age of victim girl by any admissible document as - a.

Extract of her birth certificate obtained from computer was filed without a certificate as per Section 65 (B) of the Indian Evidence Act.

b.

PW 10 advised her to go for ossification test and molar test for determination of age but no such report has been filed during trial.

(ii) As per the version of victim girl there were two places of occurrence, one is the house of her mother and the other is the agricultural field but none of the place of occurrence has been proved by prosecution.

(iii) Prosecution failed to prove foundational facts to make the accused liable under Section 29 of the POCSO Act. (iv) Medical examination report at page 94 and 95 of Paper Book clearly shows that victim girl was habitual to sexual intercourse.

(v) Accused persons were also charged with Sections 3/4/5 of the Immoral Traffic (Prevention) Act but the mandate of Section 13 of Immoral Traffic (Prevention) Act has not been complied for.

(vi) There are lot of inherent contradictions in the deposition of PW-1, PW-2 and PW-3 which create sufficient doubt in the prosecution case.

(vii) There is considerable delay in FIR. There is general presumption that accused is innocent.

43.

Now the question involved in this appeal for determination that whether learned Special Judge committed any error in passing the order of acquittal or not?

44.

Accused persons are facing charge under Section 4 of the POCSO Act, 2012 which provides for the punishment of not last 10 years which may be imprisonment of life, in case of penetrative sexual assault on a child below 16 years of age.

45.

However, the term penetrative sexual assault has been defined under Section 3 of the POCSO Act wherein it has been stated that 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 peon or any other person.

46.

Similarly Section 6 of the POCSO Act provides for the punishment with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life and shall also liable to fine or to death for the commission of aggravated penetrative sexual assault.

47.

The offence of Aggravated penetrative sexual assault has been defined and explained under Section 5 of the Act which entails various kind of acts of sexual assault in different set of circumstances and in different manner with minor girl.

48.

I need to consider on the evidence of PW 1 to decide that whether essential requirement of Section 4 and Section 6 is satisfied or not. (i) PW1, the victim girl clearly stated that Chitranjan Par, Paritosh Par, Mrinal Dhali, Raja, Bindu and Ganesh entered into forcibly sexual intercourse.

(ii) Her mother Bindu Sikder handed her over to Deenu, Mrinal Dhali and Ganesh. They also raped her at regular interval. (iii) She narrated the incident to Champa Parmananda who informed the incident to S. Laxmi and with their assistance, she filed her written complaint to the Rangat P.S.

(iv) Thereafter, Dr. Rekha Varma had examined the victim girl on 18.04.2017 at Community Health Centre, Rangat wherein she did not get any trace of forcible sexual assault, however, hymen was found absent and she was found habitual of sexual intercourse. No marks of violence was present in and around her private parts or other parts of her body and no sign and symptoms of veneral disease was found and VDRL and HIV tests done on 18.04.2017, which was found non-reactive. (v) The medical report is marked exhibit -10 and Dr. Rekha Verma was examined as PW 10. She affirmed the findings mentioned in the report in her examination as PW 10. 49.

Victim girl was also produced before the Court of learned Chief Judicial Magistrate, North and Middle Andaman, Mayabunder on 21.04.2017 for recording of her statement under Section 164 of the Code of Criminal Procedure, wherein she stated that (i) She stayed with her mother at Parnashala who married to Chitranjan Par.

(ii) They run prostitution business in the house, lured young boys and push her to do make physical relationship with them in lieu of money. On denial, her mother used to assault her physically.

(iii) Her mother handed her over to Deenu and Ganesh at Rampur for running a prostitution business.

(iv) Chitranjan Par raped her when she was 14 years. Her mother and grandmother never restrained them from doing so despite they had knowledge about all that. Raja and Mrinal had also raped her.

(v) One day, she escaped from the house of Ganesh and Dinesh and informed the incidents to Champa Parmananda. 50.

However, she admitted in her cross-examination that she used to make to and fro journey from Bishnupur to Parnashala by using Jeep but she never disclosed anything about her sexual assault to any one during her said journey. She did not share these facts even to her neighbour at Bishnupur and Parnashala. She also admitted that she was put under the penetrative sexual assault since she was of 16 years and there was only one room in her mother's house where she was rapped for 7 to 8 times. But she failed to state specific date, month and year thereof and failed to state the name of person who raped her first and that she do not go through the statement recorded by the police and that her date of birth is 6th August, 2002 and that she married Dinesh Poddar and live as husband and wife.

51.

PW-2, S. Laxmi, PW-3, Champa Parmananda, PW-4 Gouri Hawladar deposed that they came to know about the incident from

victim girl and extended their support to get legal relief. They had no direct information as to the incident and she corroborated the facts what she got during medical examination of the victim girl. 52.

PW-10 Dr. Rekha Varma affirmed her findings during medical examination of victim girl as appears from medical report prepared and signed by her.

53.

The case of the prosecution is entirely based on the evidence of victim girl. Her evidence only disclose that she was sexually assaulted by her mother father, brother, relative and their friends. Medical report corroborates that the victim girl was habitual in sexual intercourse. 54.

But these evidences are not sufficient to satisfy the victim girl was ever subjected penetrative sexual assault or aggravated penetrative sexual assault by accused. There is difference between sexual exploitation and sexual assault. She was exploited by none but by her parents and relative only. There is no proof in respect of business of prostitution.

55.

It appears from the evidence of victim girl that she was married to Dinesh Poddar and they were living together as husband and wife. Now vital contradiction is on her age. The medical report reveals that she was 15 years of age at the time of her examination, while she admitted in her cross examination that she was 16 years old at the time of her sexual assault. Without concrete proof of age, provision of

POCSO act shall not be attracted. In addition to that all sort of sexual assault would not come under the category of penetrative sexual assault or aggravated penetrative sexual assault. It is also required to understand the subtle difference between the sexual exploitation and sexual assault. As per allegation of victim girl all accused were her relative.

56.

However, many inherent contradictions are there which are sufficient to shake the credibility of witness. At one hand she stated that she was under sexual assault for a period of four years and she used to move freely from Bishnupur to Parnashala, but she do not share her agony to any one, is unbelievable.

57.

PW-2, S. Laxmi admitted in her cross-examination that the statement of victim girl was recorded in her presence. Police Officer Masuma was also present there in her uniform. She also admitted that she had no personal knowledge about the incident which has been stated by victim girl.

58.

PW-3 Champa Parmananda who informed the incident to Gouri Hawladar, member of Sakhi Saheli Group who informed about it to Laxmi Madam at about 8:00-9:00 a.m. they came Bishnupur within one hour, stayed therefor half an hour and police came Bishnupur in presence of Laxmi Madam.

59.

PW-4, member of Sakhi Saheli Group stated that victim girl is her niece. She came to know about the incident that her mother and step father used to engage her in sexual activities for the purpose of earning money. She admitted in her cross-examination that she heard the incident from Champa not from victim.

60.

The allegations are wild in nature as it was not made against a specific person for their specific act, date, time and manner. 61.

No specific evidence adduced by prosecution in this respect. However, all the accused persons are close relative against whom most of the charge would not lie without any corroborative evidences. 62.

From the trend of cross-examination it appears that none of the witnesses had direct information of the incident. However, many persons are stated to be assaulted the victim girl but she unable to say any particular date or time in respect of the incident of penetrative sexual assault or aggravated penetrative sexual assault. Medical report also not suggested that victim girl was put under any such incident as no trace of assault was noticed by doctor during the course of her examination. Rather she had an opinion that victim girl was habitual in sexual intercourse.

63.

In any event, I do not find any evidence which may attract any of the ingredients of the Section 4 and 6.

(i) Her allegations are also not against any person. The allegations are general in nature. No specific act, time, place and manner is stated against any person. There physical relation with victim girl may be consensual, which is offence in itself, but persons shall not be held liable under POCSO Act. (ii) Without firm evidence against a person no one can be held guilty for the offence. She suffered the agony of assault for years. Over the time she visited many places met may persons, but never disclosed her agony to anyone. What compelled her to lodge FIR against them after 4 years, is unanswered. (iii) Such discrepancies in evidence creates doubt in the case of prosecution.

64.

It is fact that age of victim girl is not disputed by learned Advocate for the respondent. He only challenged the admissibility of extracted form of birth certificate obtained from computer. In the absence of certificate of the authority required to be issued in compliance of Section 65 (B) of the Indian Evidence Act. It is also fact that victim girl was never produced to the G.B.Pant Hospital for specialized examination for determination of her age as advised by PW 10 in her medical report. Above all it is not in dispute that victim girl was minor at the time of occurrence. There may be difference of a year or two in her age but undisputedly she was minor.

65.

It is true that Section 29 of POCSO Act caused adverse presumption against the person who is prosecuted for committing or abetting or attempting to commit any offence under Sections 3/5/7/9 of this Act. The accused persons are facing prosecution under Sections 3/5 of POCSO Act. The adverse presumption is there against them. The accused persons are under the legal obligation to rebut the presumption. But for that prosecution is first bound to establish foundational facts, by dint of Section 29 and 30 of the POCSO Act. However double presumption of innocence is in favour of accused. One is by dint of operation of Section 29 and 30 of the POCSO Act because prosecution failed to prove foundational fact in this case. Second presumption of innocence drawn in favour of accused by dint of the judgement of acquittal passed by trail court after evaluation of evidences.

66.

The criminal jurisprudence shifts the burden to prove its case from the shoulder of prosecution. The POCSO Act is exception to that general presumption.

67.

I find that the ratio decided in (i) 2019 4 Crimes (HC) 90 GUJARAT HIGH COURT (Ajitkumar Kumarsinh Bhagora - versus - State of Gujarat, (ii) 1996 (4) Supreme 167, Raj Kumar Singh @ Raju @ Batya - versus State of Rajasthan,

(iii) Mallappa and Others - versus - State of Karnataka, (iv) Raghunatha and Another - versus - The State of Karnataka, (v) Ramesh and Another - versus - State of Karnataka, (vi) State of Punjab - versus - Randhir Singh and many other cases are applicable here as prosecution is under obligation to establish foundational fact to establish prima facie case, then only burden will shift on the shoulder of accused to rebut the presumption. In absence of foundational facts, reverse burden of prove has not shifted to the accused.

68.

I am not convinced that element of any of the provision of POCSO Act is attracted here.

69.

There may be suspicion against the accused persons. But suspicion however strong would not step into the shoes of evidence. As far as allegation in respect of Immoral Traffic (Prevention) Act the evidences are not wholly sufficient but I am not corroborated by any independent and reliable evidences.

70.

In this background, the impugned judgement and order dated 22.08.2023 rendered by the Special Judge (POCSO) at Port Blair is based on an apropos appreciation of evidence available on record and hence, does not warrant interference in this appeal against acquittal preferred by the State.

71.

Consequently, the appeal fails and is dismissed.

72.

Pending application(s), if any, shall stands disposed of. 73.

Urgent Photostat certified copy of this judgement, if applied for, may be supplied to the parties upon compliance of usual formalities. (Uday Kumar, J.) It has come to the notice of the Court that there has been a mistake in recording the date of the order dated 09th December, 2024. The date has been incorrectly mentioned in the order sheet as 5th December, 2024. Be it recorded the order dated 5th December, 2024 shall be read as 09th December, 2024. The department is directed to make necessary rectification in the order sheet. ( Amrita Sinha, J.) ( Uday Kumar, J.)