Form No: J(1)

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Anuj Singh

CRA No. 594 OF 2019

Mrinmoy Halder.

v.

The State of West Bengal.

For the Appellants: Mr. Soumya Nag, Adv.

Mr. Safiqul Islam, Adv.

For the State: Mr. Pradip Banerjee, Ld. APP

Mr. Sankalpa Bhattacharjee, Adv.

Hearing concluded on: 17

th

September, 2026

Judgment pronounced on: 24

th

September, 2026

ANUJ SINGH, J.:-

1. The instant appeal has been preferred against the Judgment and Order

of conviction dated April 8, 2019, and the order of sentence dated April

10, 2019, passed by the learned Additional Sessions Judge cum Judge,

Special Court (under the Protection of Children from Sexual Offences

Act, 2012), 2nd Court, Alipore, South 24 Parganas, in Special Trial No.

5(06) of 2016, corresponding to Special Case No. 100 of 2016, arising

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out of Chetla Police Station Case No. 50 of 2016 dated March 14, 2016.

By the impugned Judgment, the appellant herein was convicted for the

commission of offences punishable under Section 376(2)(i) and Section

506(II) of the Indian Penal Code read with Section 6 of the Protection of

Children from Sexual Offences Act, 2012.

2. By the order of sentence, the appellant was directed to suffer rigorous

imprisonment for fifteen years and to pay a fine of Rs. 20,000/–; in

default, to suffer rigorous imprisonment for a further period of one year

for the offence punishable under Section 6 of the POCSO Act. The

appellant was further sentenced to rigorous imprisonment for five years

and to pay a fine of Rs. 10,000/-, in default whereof to suffer rigorous

imprisonment for a further period of six months for the offence

punishable under Section 506 (II), IPC. No separate sentence was,

however, imposed under Section 376(2)(i) IPC in view of Section 42 of

the POCSO Act. The sentences were directed to run concurrently, with

the benefit of set-off under Section 428 of the Code of Criminal

Procedure, 1973. It was, inter alia, directed that 50% of the amount of

fine, if realized, should be paid to the victim girl.

3. In the present appeal, the appellant has challenged the legality of the

conviction and sentence, inter alia, on the ground that the evidence of

the victim suffers from serious contradictions and is not corroborated

by the evidence of her grandmother or by the medical and/or forensic

evidence led before the Trial Court. The appellant further contended

that the foundational facts necessary and preconditioned for invocation

of the statutory presumption under Section 29 of the POCSO Act were

not proved, and alternatively, that such presumption stood rebutted by

the evidence on record.

I. PROSECUTION CASE

4. The case was initiated on March 14, 2016, upon a statement made by

the victim girl, then aged about 11 years, which was recorded by LSI

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Anita Guha at Chetla Police Station and treated as a written complaint.

The identity of the victim is withheld in this judgment in conformity

with Section 33(7) of the POCSO Act.

5. In her complaint to the police, the victim stated that after the death of

her father, one of their relatives, namely Mrinmoy Haldar, used to visit

their residence. She stated that Mrinmoy was in a relationship with her

mother and would occasionally also assist the family financially.

According to the victim, during the Christmas vacation preceding

December 25, 2015, she used to remain alone at home in the afternoon

while her mother went out for work and her younger brother attended

his school.

6. The victim stated that on one such afternoon, while she was lying in

the room, the accused entered, removed his trousers as well as her

clothes, and forcibly inserted his genital organ into hers. Mrinmoy

gagged her mouth to prevent her from raising an alarm. She stated that

the grandmother thereafter came to the house when the victim girl

disclosed the incident to her grandmother . The complaint further

recorded that similar acts of sexual abuse had been committed upon

her on three or four earlier occasions. The victim further stated that

she had initially refrained from informing her mother on account of fear

due to her mother’s relationship with the accused. According to her,

when the accused again came to the house on March 14, 2016, she

became frightened and cried before her grandmother and narrated the

incidents to her. The grandmother thereafter took the victim girl to the

police station.

7. On the basis of the aforesaid statement, Chetla Police Station Case No.

50 dated March 14, 2016, was registered for investigation against

Mrinmoy for the offences punishable under Section 376 of the Indian

Penal Code and Section 4 of the POCSO Act, and the investigation of

the case commenced.

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8. In the course of investigation of the case, the victim girl was medically

examined on March 14, 2016. The vaginal swab of the victim girl was

collected. Her statement was also recorded by the learned Magistrate

under Section 164 of the Cr.P.C. on March 21, 2016. The Investigating

Officer, in the course of investigation, seized the Birth Certificate of the

victim girl apart from seizing certain articles of clothing as well. The I.O.

thereafter inspected the place of occurrence and prepared a site map.

Pertinently, the statement of the maternal grandmother was also

recorded before the learned Judicial Magistrate in terms of Section 164

Cr.P.C. The Investigating Officer also medically examined the appellant,

who was found capable of sexual intercourse. The wearing appa rel of

the victim and the vaginal swab were also forwarded for forensic

examination. The forensic report received by the Investigating Officer,

however, did not detect semen or sperm on any of the articles. After

completion of the investigation of the case, the I.O. submitted a charge-

sheet against the appellant.

9. In the usual course, on June 17, 2016 charges were framed against the

appellant for committing rape upon the minor girl, for criminal

intimidation, and for aggravated penetrative sexual assault, punishable

under Sections 376(2)(i) and Section 506(II) IPC and Section 6 of the

POCSO Act. The charges framed against the appellant alleged an

occurrence on or about December 24, 2015, and three similar

occurrences prior to the said date. The appellant pleaded not guilty to

the charges against him and claimed to be tried in accordance with law.

II. EVIDENCE ADDUCED BY THE PROSECUTION

10. The victim girl was examined as PW-1 in camera. In the course of her

deposition before the court, the victim girl stated that on the afternoon

of December 24, 2015, she, her younger brother, and the appellant

were watching television in a room while her mother was away for work.

After her brother fell asleep, the appellant allegedly removed her clothes

and his trousers and committed penetrative sexual assault on the

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victim girl. When she threatened to inform her mother, the appellant

threatened to kill her brother. The victim girl stated that on the

following morning, the appellant asked her to put the mosquito net over

her bed, enquired whether she had disclosed the previous incident to

her grandmother, and thereafter once again subjected her to

penetration. The victim girl further deposed that on the next day, the

appellant called her on the pretext of inquiring about an oil jar, took

her to the first floor, closed the door, and caught hold of her. In such

circumstances, she raised an alarm. She further stated that only that

morning, the appellant asked her to find his mobile phone, which had

fallen behind a sewing machine, and when she bent down, he removed

her trousers and penetrated her again, whereupon her younger brother

came and witnessed the incident. She stated that thereafter she came

downstairs and disclosed the matter to her grandmother, who called

local persons and asked the appellant to leave the house immediately.

It is further stated by the victim girl that the appellant subsequently

stopped visiting the house and later on when he returned on March 14,

2016 she got frightened and was eventually apprehended by Raju,

stated to be a police person, following which she reported the matter to

the police. The victim girl proved her signature on the complaint, the

medical documents, and the statement recorded under Section 164

Cr.P.C., and identified the appellant present in court. In the course of

cross-examination, it was elicited that the appellant had a relationship

with her mother, used to visit and stay at their house, purchase

household articles, and occasionally cook there. She further stated that

neither she nor her grandmother approved of the relationship of the

appellant with her mother, and that she did not have a good

relationship with the appellant. She has further stated tha t she

reported the matter at the instance of the grandmother, that the police

officer asked her to narrate the occurrence to a lady police officer, and

that she had not stated before the learned Magistrate that her

grandmother had witnessed the alleged occurrence.

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11. PW-2, a resident of the same locality as victim’s mother, deposed that

victim’s father died around three years before the occurrence of

incident, and that victim’s mother lived with her mother. PW-2 deposed

that she heard from other women that th e accused had committed

sexual intercourse with the victim, but she herself never saw the

accused.

12. PW-3, Kajal Mondal, is a Constable of Police in the Detective

Department at Lal Bazar. She deposed that she and LSI Meghna Kar

visited and she prepared a rough sketch map of house, on instructions

of LSI Meghna Kar. She prepared final version of sketch map on

29.03.2016 and denied the allegation that rough sketch map does not

match the final version.

13. PW-4, Saumen Mondal, is the RMO -cum-Clinical Tutor at S.S.K.M.

Medical College and Hospital, who on 14.03.2016 at about 4.30 A.M.,

medically examined the girl, aged about 12 years, brought to the

hospital by L.S.I. Anita Guha. The child gave a history of repeated

intercourse by the accused. On examination, the child was found

conscious, alert and co-operative, with an old healing scar on right arm

and a fresh bruise-injury on left elbow. He deposed that her abdomen

was soft with no tenderness, she had not attained menarche, breast

and pubic hair development were at Tanner Stage II , there was no

bleeding from vagina, the hymen was absent, the vagina admitted one

finger, and no external injury was found on the thighs or perineum. A

vaginal swab was collected for forensic examination, and victim was

advised to undergo pregnancy test. He admitted in cross-examination

that report was written by his junior, Dr. Asmita (not signed by her)

and no note that history was read over to victim. Written consent was

obtained from victim’s mother.

14. PW-5, is the grandmother of the victim, who deposed that her

daughter’s husband died on 15.11.2014, leaving behind a son and

daughter. The accused had relationship with the mother of the victim

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and visited her house. PW-5 exhibited victim’s birth certificate to prove

victim’s age. On 25.12.2015, around 9 to 10 AM, PW-5 went to victims

house and upon being informed by victim’s brother, she found the

accused gagging the naked victim on “macha”, while sitting over her

with no lower garment, and that th e victim told her about prior

incidents of intercourse. The accused was driven away by local people

but returned two months later and assaulted victim’s brother,

prompting the police complaint. Accused was apprehended by residents

on 13.03.2016 and handed to Chetla P.S. where the victim’s clothes

were seized in PW-5’s presence (Ext. 7) and her own statement

recorded, including under Section 164 Cr.P.C. before the Magistrate

(Ext. 8 series). In cross-examination, she admitted her family’s

disapproval of the accused’s relationship with the victim’s mother, but

denied any grudge.

15. PW-6, a neighbour, deposed that she learnt about the occurrence of

incident of rape of victim from her grandmother, and was not

interrogated by the police.

16. PW-7 is SI Goutam Mondal at Chetla P.S., who on 14.03.2016 received

the statement of the victim girl and registered Case No. 50 for offences

u/s 376 IPC and S. 4 of the POCSO Act, recording the formal F.I.R. in

his own hand and signature (Ext. 9, signature Ext. 9/1). The then

Officer-in-Charge endorsed the case to L.S.I. Anita Guha for

investigation. She recorded victim’s statement (Ext. 1/1), which was the

written complaint. PW-7 seized victim’s clothes from her mother,

prepared a seizure list (Ext. 7/2, signature Ext. 7/2), and accompanied

the victim and LSI Anita Guha to S.S.K.M. Hospital for her medical

examination, and personally arrested the accused. In cross -

examination, he admitted that he recorded the FIR at about 00.15

hours on 14.03.2016, that the medical examination lasted about half

an hour, and arrested the accused at about 01.10 A.M ., prepared

seizure list between 1.20 and 1.30 A.M., and denied that the accused

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was taken from his house, and stated that clothes were sent for FSL

examination.

17. PW – 8, Anita Guha, Lady S.I. of Police, who was posted at Chetla P.S.

on 14.03.2016 when the case was registered. On that date, she

recorded the victim girl’s statement (Ext. 1/1). The then Inspector-in-

Charge of Chetla P.S. endorsed the case to her for investigation, and

she identified his signature on the formal F.I.R. (Ext. 3). She took the

victim to S.S.K.M. Medical College and Hospital for medical

examination. She recorded Section 161 Cr.P.C. statements of three

available witnesses, visited place of occurrence, and had a Detective

Department expert prepare rough sketch map of the spot. She seized

victim’s birth certificate from her mother, prepared a seizure list, and

kept the birth certificate in mother’s custody under a Zimmanama (Ext.

10), and then handed over the investigation to another officer on the

superior’s direction. She admitted in cross-examination that the

timings of her site visit and exit was not recorded in case diary, names

of persons residing nearby were not personally ascertained by her,

sketch map was not prepared by her, and the names of witnesses

whose statements she took was not mentioned in case diary, and

denied that the investigation was perfunctory.

18. PW-9 is a Lady S.I. of Police posted at the Special Juvenile Police Unit,

Detective Department, Lal Bazar. On 21.03.2016, she took over the

investigation from L.S.I. Anita Guha. She met the victim at CINI ASHA

shelter home and recorded her Section 161 Cr.P.C. statement, along

with statements of other witnesses. She collected sketch map prepared

by PW-3 and interrogated the accused in jail custody. She sent the

victim and the accused for medical examination by Dr. T.K. Roy and

collected the report (Ext. 11, 12 respectively). She arranged for

recording the victim's and her grandmother’s Section 164 Cr.P.C.

statement. She sent victim’s vaginal and urethral swab and accused’s

seized clothes for forensic examination to C.F.S.L., Kolkata and

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collected the FSL Report (Ext. 13). She submitted Charge sheet No. 48

of 2016 dated 23.05.2016 against accused.

III. DOCUMENTARY EXHIBITS ADDUCED BY THE PROSECUTION

19. The first version of the girlwas through the statement recorded by LSI

Anita Guha, which was treated as a written complaint and marked as

Exhibit 1(1), with the signatures, etc thereon being marked as Exhibits

1(1), 1(2), and 1(3). On the basis of such complaint, the formal FIR was

registered and marked as Exhibit 9, with the signature of the officer

being marked as Exhibit 9(1). The statement of the victim girl recorded

by the Judicial Magistrate under Section 164 CrPC was marked as

Exhibit 2 series, while the corresponding statement made by her

maternal grandmother, PW 5, was marked as Exhibit 8 series. These

statements contained their respective versions regarding the act of

sexual assaults, the circumstances of disclosure, and the applicant's

access to the victim girl.

20. The victim's age was proved by the Birth Certificate issued by the

Kolkata Municipal Corporation, recording her date of birth as

December 2, 2004. The signature of PW5 on the seizure list was

marked as Exhibit 6, and the seizure list was marked as Exhibit 6/1,

with the signature of PW8 thereon marked as Exhibit 6 /2. The birth

certificate was subsequently returned upon execution of Zimmanama

marked as Exhibit 10. The rough sketch map of the place of occurrence

was marked as Exhibit 5, and the final plan was marked as Exhibit

5/1, with the signatures of the plan maker being marked as 5/2 and

5/3. The seizure relating to the wearing apparel was marked as Exhibit

7/1, while the signatures of the witnesses and the police officer thereon

were marked as Exhibit 7/7 and 7/2.

21. The medical report prepared at S.S.K.M Hospital after the examination

of the victim girl on March 14, 2016, was marked as Exhibit 3/1, while

the victim's and doctor's signatures were marked as Exhibit 3 and 3/2,

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respectively. The consent relating to her medical legal examination was

marked as Exhibit 4. A subsequent medical legal report relating to the

victim was marked as Exhibit 11, and the medical examination report

of the appellant was marked as Exhibit 12.

22. The medical report of the victim recorded that the victim's hymen was

ruptured, the vagina admitted one finger, and that she had been

subjected to sexual intercourse, while the subsequent report recorded

that the appellant was capable of performing sexual intercourse. The

forensic report was marked as Exhibit 13. It has been recorded that no

semen or sperm could be detected on the garments or vaginal swabs

sent for examination. It was further noted that the vaginal smears and

the urethral swab and smears referred to in the forwarding memo were

not found in the parcel received by the laboratory.

23. The appellant was examined under Section 313 C rPC by the learned

trial court, where the accused had consistently denied the prosecution

case and pleaded innocence.

IV. FINDINGS OF THE TRIAL COURT

24. Upon consideration of the evidence adduced by the prosecution, the

learned Trial Judge accepted the testimony of the victim girl as truthful

and reliable. The Trial Court held that she had given a clear account of

the repeated acts of penetration and of the threat extended by the

appellant, and that the substance of her account remained consistent

with the written complaint. The variations appearing in the evidence

were treated as minor discrepancies which did not affect the core of the

prosecution case.

25. The Trial Court also believed the victim's account in the evidence of her

maternal grandmother, PW 5, and in the medical evidence. It accepted

the documentary evidence regarding the victim's date of birth and held

that she was below twelve years of age on the dates of occurrence. The

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delay in lodging the FIR was found to be sufficiently explained by the

threats given to the child, the relationship between the appellant and

the victim's mother, and the circumstances in which the appellant

again came to the house.

26. The learned Trial Court thereafter invoked the presumption under

Section 29 of the POCSO Act. Having found that the prosecution had

established the foundational facts constituting aggravated penetrative

sexual assault, the Trial Court held that the appellant had failed to

prove the contrary. It accordingly convicted the appellant under

Sections 376(2)(i) and 506 (II) of the IPC and Section 6 of the POCSO

Act.

V. DEFENCE ARGUMENTS

27. Mr. Saumya Nag, learned advocate appearing for the appellant, has

assailed the judgment of conviction and the order of sentence on the

following grounds:

a. The prosecution has failed to prove a consistent, coherent, and

identifiable case of actual occurrence of the alleged offences.

b. The prosecution has relied heavily upon the evidence of PW -1.

However, her own evidence is inconsistent with her earlier

statements at the stage of the FIR, at the stage of the 164 CrPC

statement before the Judicial Magistrate as well as at trial. It is

submitted that the evidence of PW-1 is not believable. He relies

upon Rai Sandeep @ Deepu v. State (NCT of Delhi), (2012) 8

SCC 21, to argue that PW-1's testimony cannot be termed as that

of a ‘sterling witness’. He also relies upon Abbas Ahmad

Choudhury v. State of Assam, (2010) 12 SCC 115 , to contend

that there is no presumption of law that the entire statements of

the victim girl should necessarily be treated as truthful.

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c. The case made out in the complaint leading to registration of the

FIR proceeds on the basis that the main occurrence and three to

four earlier occurrences had taken place before December 25,

2015. However, her subsequent statements are contradictory to

her earlier statements. While at one stage she has stated that her

brother was sleeping beside her during the first occurrence, her

subsequent statements with regard to the presence of her brother

are also contradictory. He relies upon the judgment reported in

Nirmal Premkumar v. State, (2024) 20 SCC 293 , to contend

that material contradictions in the victim's successive versions

may make the deposition of the victim girl unsafe, if the same is

used as sole basis for convicting the accused.

d. The testimony of PW-5 is also unreliable, as she has given different

narrations of the event by claiming that, on the morning of

December 25, 2015, she went upstairs and first personally found

the appellant sitting without his lower garment, over the naked

victim girl. However, the same is in contradiction with the evidence

of PW-1. He refers to the deposition of PW-1 and PW-5 to show

that the same are mutually destructive versions regarding the

same incident.

e. He further argues that the formal charges framed by the trial court

specifically restricts the prosecution case to the occurrence “on or

about 24th December 2015” and three occasions preceding that

day. No charges were framed with regard to incidents dated 25th

December 2015, 26th December 2015, or 27th December 2015.

Nor were the charges altered under Section 216, CrPC. However,

in the judgment convicting the appellant, incidents of all four days

have been collectively attributed to the appellant.

f. The prosecution has failed to examine material neutral witnesses,

namely the victim's brother, her mother, and neighbours, who

would have thrown light upon the incident. He contended that

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adverse inference under Section 114 , illustration (g) of the

Evidence Act must be drawn against the prosecution.

g. That Section 29 of the POCSO Act does not automatically come

into play upon the registration of the case, and that unless the

foundational facts are proved, no presumption could be raised. He

submits that in the instant case, the foundational facts have not

been proved. Reliance has been placed on Debraj Dutta v. State

of West Bengal, 2026 SCC Online SC 664 , which holds that a

statutory presumption cannot arise solely upon incons istent

evidence of the child witness. Similarly, Vikash v. State (NCT of

Delhi), 2026 SCC Online Del 5787 , has been relied upon to

contend that foundational facts must be proved before the

presumption under Section 29 of the Act can be raised. Nirmal

Kumar v. State (NCT of Delhi), 2026:DHC:4028 has been cited

to argue that material inconsistency, which dilutes the

foundational facts, must result in a benefit of doubt in favour of

the accused.

h. It has been argued that surrounding circumstances may prevent

raising of presumption under Section 29 of the Act,

notwithstanding apparent inconsistency between the prosecution

witnesses. In this regard, reliance has been placed upon Subrata

Biswas v. State, 2019 SCC Online Cal 1815 . Further, Ganesh

Orang v. State of West Bengal, 2022 SCC Online Cal 255 , has

been cited to argue that contradictions relating to time, place,

number and circumstances of the alleged offence cannot be cured

by resorting to the presumption of Section 29 of the Act.

i. Medical evidence has also not corroborated the prosecution case.

He has argued that Exhibit 11 has not been proved by the doctor.

He refers to Exhibit 3 to argue that, on medical examination, no

bleeding or external injury to the thigh or perineum was found. He

relies upon Mostafa Sk. @ Mostu Sk. V. State of West Bengal,

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2014 SCC Online Cal 17542, to contend that a medical report,

not proved by its author, cannot support a prosecution case. He

next relies on Vijender v. State of Delhi, (1997) 6 SCC 171, to

contend that the medical finding must ordinarily be proved by the

doctor concerned. He next relies upon Rajesh Patel v. State of

Jharkhand, (2013) 3 SCC 791 , for the principle that, in a rape

prosecution non-examination of the doctor deprives the defence of

the right to test the medical findings on cross-examination. It is

lastly contended that Exhibit 11, even if held to be admissible, its

bare conclusion that the victim had been subjected to sexual

intercourse is of no consequence to the present case. He relies on

Stateof Himachal Pradesh v. Jai Lal, (1999) 7 SCC 280 , to

contend that an expert's opinion derives its probative value from

the reasons and supporting data given by the expert.

VI. ANALYSIS OF THE EVIDENCE ADDUCED IN THE CASE

28. In order to convict the accused for the offences punishable under

sections 376(2)(i) and section 506(II) of the Indian Penal Code read with

sections 6 of the POCSO Act, 2012, the prosecution at trial was

required to establish by evidence that the accused, Mrinmoy Halder,

committed aggravative penetrative sexual assault upon the victim girl,

committed rape and threatened her with dire consequences of killing

the younger brother, in the event she discloses the incidents to the

adult members of the family.

29. It is required to be seen whether the foundational facts necessary for

raising the statutory presumption under Section 29 of the POCSO Act

have been established and what is the consequence of the delay in

lodging the FIR in this case, non-examination of the younger brother

and the mother of the victim girl, and, most importantly, the heavy

reliance of the defence counsel on the contradictions of the evidence of

the victim girl and her grandmother being PW-1 and PW-5, respectively.

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30. Each aspect of the case is examined below.

i. Proof of Foundational facts to raise the presumption of section

29 of the POCSO Act

31. Before a presumption under Section 29 of the Act can be raised

against the accused, the foundational facts regarding commission of

the offence must to be proved. Once the foundational facts

necessary to raise a presumption under Section 29 of the Act are

placed on record by way of cogent and reliable evidence, the reverse

burden, as contemplated in the statutory provisions of the Act,

stands shifted upon the accused, who would then must rebut the

same.

A. The Age of the victim

32. PW5 has brought on record the Birth Certificate of the victim

girl issued by the Kolkata Municipal Corporation that records

her date of birth as December 2, 2004. The Birth Certificate has

been marked as Exhibit 6.The defence has not disputed the fact

that the victim girl was a minor and below 12 years of age. In

fact, the evidence adduced on record establishes that the age of

the victim girl on the date of the sexual assault was less than

12 years. The fact that the victim girl was a minor and below 12

years of age is thus well established and proved.

B. The access of the Appellant to the victim.

33. The fact that the appellant had an affair with the mother of the

victim girl is also established by direct oral evidence of PW-1

and PW-5. The fact that the appellant had free access to the

household would also be evident from the fact that the appellant

used to spend nights with the mother of the victim girl at their

residence, occasionally help the family with money, and also

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cook food occasionally at the house. The fact clearly establishes

that the appellant had free access to the victim girl. The identity

of the accused is also established. The fact that the victim girl

had identified the appellant on the dock, as the perpetrator of

the crime, in the course of her evidence before the court also

conclusively establishes the identity of the appellant as the

person who had committed the heinous crime.

C. The direct oral evidence of the penetrative sexual assault on

the victim by the appellant

34. The victim girl has, in course of her oral complaint to the Police

Station on March 14, 2016, to the Judicial Magistrate under

Section 164 of the CrPC on March 21, 2016 and finally before

the Special Court in the course of her deposition on December

20, 2016 and December 21, 2016 has constantly deposed that

the appellant had committed penetrative sexual assault on

repeated occasions. The defence has not been able to shake her

clear and direct testimony regarding the aggravative penetrative

sexual assault.

35. In her complaint to the police, she has stated that the appellant

entered the room while she was alone, removed his trousers and

her clothes, gagged her, and forcibly penetrated her. She further

stated that similar acts of forceful sexual intercourse had

occurred on three or four earlier occasions, and that she

remained silent because of fear of her brother being killed and

also because of the appellant's relationship with the victim girl's

mother.

36. Before the learned Magistrate, in the course of her recording

under Section 164 of the Code of Criminal Procedure, 1973, as

well as in her oral testimony before the trial court, the victim girl

has maintained the core allegation of the appellant being the

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perpetrator, that he obtained access inside the residence

because of her acquaintance with her mother, that he removed

the clothing, that he penetrated her, and that he prevented the

disclosure to anyone by gagging and threatening her. The abuse

was repeated. She has also identified the appellant in court, and

her evidence on these essential matters remained unshaken in

the cross-examination. All that the defence has attempted to do

is to find inconsistencies in her statements at the three stages.

On careful perusal of her evidence throughout, made before the

police, the Judicial Magistrate, and finally before the Special

Court, there is no room for doubt that the consistent core of the

evidence of penetrative sexual assault on repeated occasions by

the appellant stands conclusively proved and is found to be

unblemished and of sterling quality.

D. Medical and forensic evidence

37. PW4 examined the victim girl on March 14, 2016. Her evidence

is on record. She has deposed that the child was conscious,

alert, and cooperative. The hymen was absent, and the vagina

admitted one finger. It was found that there was no fresh

bleeding or external injury to the thighs or perineum. These

facts are corroborative of the evidence of prior penetration. The

absence of fresh injuries in her private parts is unsurprising,

when it is seen that such medical examination took place nearly

80 days after the last sexual assault. It is pertinent to mention

that penetration, within the meaning of Section 3 of the POCSO

Act, may be slight and does not require proof of ejaculation or

injury. The aforesaid medical evidence, is therefore, found to be

consistent with the case of PW-1 regarding repeated sexual

assault upon her and does not, in any manner, contradict her

oral testimony in court or elsewhere.

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38. The absence of injury to private her parts, non-detection of

semen or sperm on the garments or vaginal swab or the negative

semen results are of little evidentiary value in establishing the

innocence of the appellant, particularly because the prosecution

case was of penetration and not necessarily ejaculation.

39. The evidence that the appellant was capable of penetrative

sexual assault is also on record and only lends support to the

prosecution version.

40. The aforesaid foundational facts narrated above unmistakably

results in raising the mandatory presumption of guilt under

Section 29 of the POCSO Act against the accused

ii. Presumption under Section 29 of the POCSO Act:

41. The presumption under Section 29 of the POCSO Act is invoked

only after finding that the foundational facts have been duly

established by the prosecution. In the present case, those

foundational facts are summarized as :

(a) the victim was below 12 years of age;

(b) the appellant had regular access to the household and was

known to the victim girl;

(c) PW-1's direct and reliable evidence identifying the appellant

and giving a detailed account of sexual penetration, gagging,

and repeated sexual abuse;

(d) her evidence remained consistent throughout the three stages

of the police complaint, examination before the Judicial

Magistrate under Section 164 CrPC, and finally before the

trial court in the course of the trial; and

(e) the medical findings are compatible with the prior penetration

and in no way contradict the testimony of the minor girl.

19

42. Ld. Counsel places reliance on Debraj Dutta v. State of West

Bengal, 2026 SCC OnLine SC 664 , to argue that the statutory

presumption under Section 29 of the POCSO Act is not an

automatic presumption and that the prosecution must first prove

the foundational facts before raising such presumption. The

present case cannot be equated with the factual position of Debraj.

In this case, the victim girl’s statement is consistent regarding the

core allegations of sexual assault and this is not the case that

there exist material discrepancies in her statements, thus, the

foundational facts have been proper ly laid down by the

prosecution in the present case. For the same reasons, Vikash v.

State (NCT of Delhi), 2026 SCC OnLine Del 5787 and Nirmal

Kumar v. State (NCT of Delhi), 2026:DHC:4028, Ganesh Orang

v. State of West Bengal, 2022 SCC OnLine Cal 255 and

Subrata Biswas v. State, 2019 SCC OnLine Cal 1815 relied

upon by the defence are completely distinguishable on facts as

there are no material inconsistencies or variations which goes to

the genesis of the prosecution case.

43. The aforesaid clear evidence establishes the ingredients of

penetrative sexual assault under Section 3 and aggravated

penetrative sexual assault under Section 5(m) of the Act. Her

evidence of repeated acts also attracts Section 5(l). The

foundational facts, therefore, contemplated in Sambhubhai

Raisangbhai Padhiyar v. State of Gujarat, (2025) 2 SCC

399,therefore, stand firmly established, wherein, in paras 33, 35,

the Hon’ble Supreme Court observed that the evidence clearly

established and constituted foundational facts for raising

presumption under Section 29 of the POCSO Act, and the same

was available to be raised for commission of offence under Section

3 and Section 5 of the POCSO Act, when foundational facts are

clearly established.

20

44. Further, in a decision of a Co-ordinate Bench of this Court in Raju

Roy v. State of West Bengal (2022 Cri LJ 439), it was held was

held :

“57. We are aware that Section 114A of the Evidence Act was

introduced by way of an amendment in the year 2013. It lays

down a rule of presumption as to absence of consent in certain

prosecution case for rape. The POCSO Act 2012 provides for two

presumptions, namely, the presumption as to certain offences,

(Section 29) and the presumption of culpable mental state (Section

30). In contrast to the normal idea of ‘presumption of innocence’

(innocent until proven guilty) in criminal law, the POCSO Act, as a

special statute, allows for a movement toward ‘presumption of

guilt.’

58. Considering the same, it has been established that the

primary burden is for the prosecution to prove the foundational

fact of the case by adducing ‘cogent, trustworthy and reliable’

standard of evidence. Section 29 has got no direct and automatic

application irrespective of the standard of evidence adduced in a

particular case. Thus, without proof of foundational evidence in

case under POCSO Act, the onus to prove the reverse burden of

proof does not come into operation. The statutory presumption

cannot be taken to be absolute. (See Swapan Mondal (Supra)).

59. In the case Sitaram Das v. State of W.B., reported in 2020

SCC OnLine Cal 522, it was held in paragraph 33-35 as follows;

“It is only on proof of foundational evidence being led, the onus

gets shifted to accused to prove the contrary in order to discharge

the reverse burden of proof, as contemplated in Section 29 of the

POCSO Act…. It has got no direct and automatic application

irrespective of the standard of evidence adduced in a particular

case. The statutory presumption thus cannot be taken to be

absolute. “… mere proof of medical evidence, which is nothing

more than a corroborative piece of evidence, would not by itself

pave the way for application of presumption available under

Section 29 of the POCSO Act.”

60. In Swapan Mondal, (supra) in a separate concurring judgment

delivered by one of us (Soumen Sen J.), the concept of reverse

burden of proof was considered and discussed. The factual

matrix of the case pertained to the aggravated pene trative

assault on a victim girl aged fifteen years. Observing that the

main substance of the prosecution's case rests on appreciation of

evidence in the context of Section 29 and 30 of the POCSO Act, it

was held in paragraph 28-30 that:

“There is hardly any scope for direct application of Section 29 of

the POCSO Act, even in a case where there is no foundational

evidence being led by the prosecution. … The issue was

addressed by the Division Bench of this court in the case of

Subrata Biswas v. The State reported in (2019) 3 Crl. (Cal) 331,

where the ratio decided was that proof of penetrative sexual

21

assault is sine qua non prior to making application of the

presumption available under Section 29 of the POCSO Act. …

Section 29 has got no direct and automat ic application

irrespective of the standard of evidence adduced in a particular

case. Thus, without proof of foundational evidence in a case

under the POCSO Act, the onus to prove the reverse burden of

proof does not come into operation. The statutory presumption

therefore cannot be taken to be absolute.”

61. Thus, once the foundational facts required for the

presumption under Section 29 and 30 of the POCSO Act kick in

stand established. The burden of proof falls squarely on the

appellant/accused to rebut the said presumptions on the balance

of probabilities.”

45. Thus, once the foundational facts have been properly laid out by

prosecution, the Court must raise presumption of guilt of the

accused under Section 29 and once the presumption under

Section 29 is raised, the court has to convict the accused, unless

the contrary is proved by the accused in the course of the trial.

Needless to mention, the presumption is rebuttable, and the

appellant can rebut such a presumption of law through cross-

examination, defence evidence, or through circumstances

emerging from the prosecution case.

46. In light of the aforesaid statutory presumption being raised in

favour of the prosecution case, it is necessary to examine the

defence placed on record and argued before this court.

VII. THE DEFENCE CASE

i. Evidence of PW1, victim girl unreliable :

47. Ld. Counsel for the appellant has further relied upon the decision of the

Hon’ble Supreme Court in Rai Sandeep @ Deepu v. State (NCT of

Delhi), (2012) 8 SCC 21, to argue that the testimony of the witness

must be that of a “sterling quality” and the sterling witness must

remain consistent on the core facts and should withstand scrutiny

during cross-examination. Abbas Ahmad Choudhury v. State of

22

Assam, (2010) 12 SCC 115 has been relied to show that a unreliable

witness cannot form sole basis of an order of conviction.

48. We find that evidence of PW-1 was of a sterling quality, since there were

no material variations/inconsistencies in her statements and the same

were further corroborated by the deposition of PW-5 as well. The core

allegations against the Appellant, in the present case, have been

consistent throughout regarding the identity of the offender from the

outset, the specific account of the offence, gagging, and repeated

abuses. The test laid down in Rai Sandeep for a witness to be seen as

sterling witness are fully established in this case because of the

following:

a. The sterling witness should be of a very high quality and calibre

whose version should be unassailable: In the present case, the

victim girl’s statement is of high quality and calibre having clearly

identified the accused, place of occurrence, manner of occurrence,

and specific accounts of repeated abuses with precision, and the

same is unassailable.

b. The truthfulness and consistency of the statement right from the

starting point till the end, without any prevarication: In our

considered view, the victim girl’s statements have been consistent

throughout from the date when the FIR was lodged till her

deposition before the Court, as she has consistently identified the

accused, place of occurrence, time and manner, and the specific

account of repeated abuses, without any material variations in the

statements.

c. The witness should be in position to withstand cross-examination,

without leaving room for any doubt as to factum of occurrence,

persons involved, and the sequence: It is clear, that the victim girl

withstood the cross examination without raising any doubt as to

material factum of the occurrence, persons involved, and the

sequence of the occurrence.

23

d. The version should have corelation with each and every one of

other supporting material such as manner of offence committed,

recoveries made and version of other witnesses: In the present

case, victim girl’s version clearly has corelation and is further

corroborated by the deposition of other witnesses (for instance PW-

5) and medical evidence.

49. Reference can also be made to Vijay @ Chinee v. State of Madhya

Pradesh, (2010) 8 SCC 191, the Supreme Court in Paragraph 14,

held that:

“14. Thus, the law that emerges on the issue is to the effect that

the statement of the prosecutrix, if found to be worthy of credence

and reliable, required no corroboration, the court may convict the

accused in the sole testimony of the prosecutrix.”

50. Further, in Sua v. State of Rajasthan, [2025 INSC 887], the

Supreme Court held that corroboration is not a sine qua non for

conviction in sexual offence cases. If the statement of the prosecutrix is

worthy of credence, it requires no corroboration and can form the sole

basis for conviction. Reference can be profitably had to Ganesan v.

State, 2020 10 SCC 573, paragraphs 9 to 9.3 , where the Supreme

Court reiterated that conviction for a sexual offense may be safely

based upon the sole testimony of the vic tim, when her evidence

inspires confidence of the court. Corroboration of such evidence is not

an indispensable requirement of law in all cases. What the Court must

inquire is whether the contradictions highlighted by the defence result

in discrediting the evidence of the victim girl completely.

ii. Delay in lodging of the FIR

51. Mr. Nag has strenuously argued that the delay in lodging the complaint

with the local police station and the consequent registration of the FIR

must be seen to be fatal to the prosecution case. It is argued that the

interval between the incidents in December 2015 and the complaint of

24

March 14, 2016 requires careful consideration and not an automatic

rejection. It is argued that delay has reduced the prospect of recovering

biological material and recording fresh injuries, if there was any. It is

further argued that while the explanation offered by the victim girl for

not immediately informing the adult guardians of the family because of

the threat meted out by the appellant, but the continued silence of the

mother and the grandmother from December 2015 to Mar ch 2016

remains unexplained by a reasonable explanation.

52. Delay in reporting of a sexual offense is not to be used as a standard

formula for disregarding the prosecution case. In Tulshidas Kanolkar

v. State of Goa, (2003) 8 SCC 590, paragraph 5 , the Supreme Court

has held that delay requires the court to examine the explanation

offered for such delay in lodging the FIR. Where the explanation is

satisfactory in the circumstances of the case, the delay does not render

the prosecution version brittle. Moreover, the Supreme Court, in

plethora of cases, has held that delay in lodging the FIR, in cases of

sexual assault should not be equated with other cases to acquit the

accused, as there can be several factors weighing in, in the minds of

victim and her family before coming to police station to lodge a

complaint.

53. In State of Himachal Pradesh v. Prem Singh, (2009) 1 SCC 420,

the Supreme Court in paragraph 6 , observed that :

“6. So far as the delay in lodging the FIR is concerned, the delay

in a case of sexual assault, cannot be equated with the case

involving other offences. There are several factors which weigh

in the mind of the prosecutrix and her family members before

coming to the police station to lodge a complaint. In a tradition-

bound society prevalent in India, more particularly rural areas,

it would be quite unsafe to throw out the prosecution case

merely on the ground that there is some delay in lodging the

FIR. In that score, learned counsel for the appellant is right that

the High Court has lost sight of this vital distinction.”

54. Learned counsel for the appellant has placed strong reliance upon

Rajesh Patel v. State of Jharkhand, (2013) 3 SCC 791 , Vijender v.

State of Delhi, (1997) 6 SCC 171,State of Himachal Pradesh v. Jai

25

Lal, (1999) 7 SCC 280 and Mostafa Sk. @ Mostu Sk. v. State of

West Bengal, 2014 SCC OnLine Cal 17542 to assert that in rape

prosecution, non-examination of the doctor deprives the defence of the

opportunity to test the medical findings on cross examination. In our

considered view, the reliance placed upon Rajesh Patel is misplaced on

facts. In that case, there were consideration of cumulative factors that

led to acquittal of the accused, and not solely on the fact that the

doctor was not examined. It is pertinent to mention here that in Rajesh

Patel, neither the doctor nor IO were examined, the evidence of

prosecutrix suffered from contradictions and embellishments and were

observed to be not natur al, consistent and probable to sustain

conviction. There was also an unexplained delay in filing FIR, the

cumulative effect of which created a reasonable doubt. In the present

case, the doctor who authored the report in Exhibit 11 was not

examined, however, the doctor who authored the report in Exhibit 3

was duly examined.

55. The child has explained that she was frightened and intimidated by the

appellant's threat to kill the brother and was therefore hesitant to

speak out. The relationship of the appellant with her mother was also a

reasonable hurdle. The accused was thus not a stranger, but a trusted

visitor to the household. Such a setting in itself explains the delay so

far as the child is concerned. Hence, there are reason which explains

and justifies the cause of delay in filing the FIR.

56. It is true that PW-5 was an adult and that an admitted report and an

immediate medical examination would have led to more direct evidence

against the appellant, if any. Her failure to act immediately and with

promptness, in hindsight, may appear desirable, but cannot in itself

render the other evidence nugatory. The records further show that the

appellants' return to the house in February-March 2016 led to the

lodging of the FIR. The delay has undoubtedly reduced the prospect of

recovering biological evidence. But the failure to have the additional

forensic and medical evidence does not erase the otherwise substantive

26

evidence of PW-1. The delay, therefore, warrants a caution from this

court, which has been duly exercised, but in itself does not create a

reasonable doubt. Upholding the argument that the delay in lodging the

FIR was fatal to the case, in the facts and circumstances of this case,

would result in completely disbelieving all other evidence on record is,

therefore, considered and rejected.

iii. Alleged contradictions and their effect upon the prosecution

case

57. Ld. Counsel has highlighted the following discrepancies in the

prosecution case. It is argued that the discrepancies highlighted

hereunder are material. Learned Counsel has argued that reliance

cannot be placed on the prosecution case in view of the variations

appearing in the written complaint, the statements made under Section

164 CrPC before the Judicial Magistrate and the trial court read with

the contradictory statements of the grandmother, PW-5. He submits

that these contradictions are not ordinary discrepancies which can be

attributable to lapses in memory, but are material contradictions

affecting the manner, time, and circumstances of the alleged offense.

58. The contradictions highlighted on behalf of the appellant may be

summarized thus:

a. In her complaint to the police station the victim has stated that

during the Christmas vacations she used to remain alone in the

afternoon while her mother went out for work and her younger

brother attended school, whereas in the deposition before the trial

court, her younger brother was present in the room and was

watching television before falling asleep.

b. In the written complaint, she has referred to one incident during

Christmas vacations and to three or four similar earlier incidents,

whereas in her deposition before the court, she has described one

occurrence taking place on December 24th and the remaining

three the following days.

27

c. She has stated that during one of such occurrences, her younger

brother came upstairs and saw the applicant with her, whereas

PW5, in her deposition, claimed that it was the younger brother

who alerted her and that she went upstairs thereafter.

d. According to PW-1, she came downstairs after the incident and

disclosed the matter to her grandmother, whereas PW-5 asserted

that she herself went upstairs and saw the applicant sitting naked

over the child while gagging her.

e. There were variations regarding the exact place and sequence of

occurrences of the offenses, including the reference to the room,

the first floor, the macha, the mosquito net, the oil jar and the

mobile phone lying behind the sewing machine, etc.

59. The aforesaid submissions require careful consideration. Any

contradiction becomes material when the same affects the identity of

the accused or the fact regarding the nature of the sexual act, which

renders the occurrence inherently improbable. Every contradiction

relating to time sequence, presence of another person, or the sequence

of disclosure does not necessarily result in creating doubt in the mind

of the prosecution case. The evidence of the child cannot be approached

with an assumption of either infallibility or falsehood. Such evidence

must be scrutinized with care and with due allowance for the age of the

witness, the traumatic nature of occurrences, the lapse of time before

her deposition, and, in the present case, the fact that she was

describing repeated acts rather than one isolated incident.

60. The Supreme Court in Bharwada Bhoginbhai v. State of Gujarat,

(1983) 3 SCC 217, observed that :

“Discrepancies which do not go to the root of the matter and shake the

basic version of the witnesses therefore cannot be annexed with undue

importance. More so when the all important "probabilities -factor"

echoes in favour of the version narrated by the witnesses. In the

Indian setting, refusal to act on the testimony of a victim of sexual

assault in the absence of corroboration as a rule, is adding insult to

injury. Why should the evidence of the girl or the woman who

complains of rape or sexual molestation be viewed with the aid of

spectacles fitted with lenses tinged with doubt, disbelief or suspicion?

28

To do so is to justify the charge of male chauvinism in a male

dominated society… Corroboration may be considered essential to

establish a sexual offence in the backdrop of the social ecology of the

Western World. It is wholly unnecessary to import the said concept on

a turn-key basis and to translate it on the Indian soil regardless of the

altogether different atmosphere, attitudes, mores, responses of the

Indian Society and its profile. The identities of the two worlds are

different. The solution of problems cannot therefore be identical. It is

conceivable in the Western Society that a female may level false

accusation as regards sexual molestation against a male for several

reasons… On principle the evidence of a victim of sexual assault

stands on par with evidence of an injured witness. Just as a witness

who has sustained an injury (which is not shown or believed to be self

inflicted) is the best witness in the sense that he is least likely to

exculpate the real offender, the evidence of a victim of a sex-offence is

entitled to great weight, absence of corroboration notwithstanding. And

while corroboration in the form of eye witness account of an

independent witness may often be forthcoming in physical assault

cases, such evidence cannot be expected in sex offences, having

regard to the very nature of the offence. It would therefore be adding

insult to injury to insist on corroboration drawing inspiration from the

rules devised by the courts in the Western World.”

61. In light of the above principles, of law the contradictions pointed out by

the defence is now examined:

62. The first the contradiction relates to the presence of the victim's

younger brother in the complaint, the victim gave a general description

of the circumstances during the Christmas vacations, stating that she

would remain at home while her mother went out for work and the

younger brother attended school. In her deposition, while describing a

particular occurrence, she has stated that her younger brother was

watching television in the room and thereafter fell asleep. These

statements cannot be read in isolation from her consistent core

statements that the appellant assaulted her on several occasions. The

presence or absence of the younger brother could therefore have varied

from one occurrence to another. Most importantly, neither version

alters, affects, or dilutes the essential ingredients of the offense being,

the appellant had unrestricted access to the victim girl who took

advantage of the absence of the adult members of the family, and

ultimately subjected her to sexual assault. The above variations or

29

contradictions, at the best, relate to surrounding circumstances and

not the identity of the offender or the sexual act attributed to him.

63. The second contradiction is in relation to the chronology of the

occurrences. The complaint refers to one incident during the Christmas

vacation and three to four similar incidents preceding it, whereas in her

deposition, the victim talked about one incident on December 24, 2015,

and described the other occurrences on succeeding days. The court

must bear in mind that the victim was about 11 years old, that the

allegation involved repeated acts within a comparatively short period,

and that she was recounting the same after the passage of some time. A

girl subjected to repeated sexual abuse may remember the acts and

their surrounding circumstances without being able to arrange every

occasion or occurrence in the exact chronological order. Throughout

her deposition, the victim remained unshaken with regard to the

appellant repeatedly assaulting her sexually. The contradiction as to

whether the occurrences happened immediately or subsequent to

December 24, 2015, does not, in the opinion of this court, affect the

consistent assertion of the victim. The evidence of a truthful witness is

rarely a photographic reproduction of the exact occurrence. In State of

U.P. v. MK, (1984) 1 SCC 505 ,the Supreme Court has he ld that

discrepancies which do not go to the root of the matter and shake the

basic version of the witness should not be given undue importance.

64. The third contradiction relates to the role played by the younger

brother in bringing the incident to the notice of PW-5, the grandmother.

PW-1 stated during one of the occurrences, the brother came upstairs

and saw the appellant with her. PW-5 stated that the younger brother

alerted her, which led her to go upstairs. These variations are not

necessarily irreconcilable. The younger brother could have seen the

appellant and the victim and thereafter have gone to PW -5. Even

assuming that the aforesaid narration of events does not coincide with

mathematical precision, the differences or contradictions relate to what

the younger brother did after coming to know of the occurrence and to

30

the manner in which PW-5 was alerted. It does not contradict the clear

case/deposition of PW-1 relating to the penetration, the non -

examination of the brother and the mother. At the highest, it deprives

the prosecution of a possible corroboration regarding the incident, but

the same does not affect the consistent core allegation of sexual assault

given by PW-1.It must be seen whether the witnesses who were not

examined by the prosecution could have provided a missing link to the

prosecution case, or whether such evidence would merely add

corroboration to the already existing evidence. In the present case, the

evidence of the brother and the mother would only have been

corroborative, and as such, this court does not feel that non -

examination of the said two witnesses could result in creating doubt in

the mind of the court.

65. Furthermore, a mere non-examination of witness cannot vitiate the

prosecution’s case, as has been held by the Supreme Court, in Rajesh

Yadav v. State of Uttar Pradesh, (2022) 12 SCC 200, in para 31 ,

that:

“31. A mere non-examination of the witness per se will not vitiate the

case of the prosecution. It depends upon the quality and not the

quantity of the witnesses and its importance. If the court is satisfied

with the explanation given by the prosecution along with the adequacy

of the materials sufficient enough to proceed with the trial and convict

the accused, there cannot be any prejudice. Similarly, if the court is of

the view that the evidence is not screened and could well be produced

by the other side in support of its case, no adverse inference can be

drawn. Onus is on the part of the party who alleges that a witness has

not been produced deliberately to prove it.”

66. The fourth and more noticeable discrepancy is between PW -1's

statement that she came downstairs and disclosed the incident to her

grandmother, and PW -5's statement that she went upstairs and

personally saw the appellant without his lower garment, sitting over the

naked child and gagging her. Both these versions cannot be accepted

as the exact narration of the same incident. The proper course,

however, is not to allow the possible discrepancies in the statement of

PW-5 to destroy the otherwise reliable direct testimony of PW-1. PW-5

was not the victim of the assault. Her evide nce was in fact to

31

corroborate the appellant's presence in the household, the disclosure

made by the child and the family's subsequent reaction. Even if PW-5's

assertion that she personally witnessed the compromising position, is

excluded altogether, PW-1's account of penetration, removal of clothes,

gagging or threat, and repeated sexual abuse remains unaffected. The

inconsistency thus diminishes the extent of corroboration by the PW-5.

It does not show that the statement of PW-1 was contradictory to her

own narration of sexual assault.

67. The remaining variations relate to the exact place and sequence of the

incidents and to details such as the room, the first floor, the macha, the

mosquito net, the oil jar and the mobile phone lying behind the sewing

machine. These details were narrated in the context of different

incidents and cannot be combined as though every witness was

describing a single occurrence. Some uncertainty in arranging these

details is natural where a child is required to separately recall repeated

traumatic occurrences. What remains consistent is that the incidents

took place inside the residence, that the appellant was a familiar

person having regular access to it, that he used ordinary household

situations to isolate or approach the victim, and that he repeatedly

subjected her to penetration. None of the variations makes the

occurrence inherently improbable or affects the identity of the

appellant, the nature of the sexual act, or the victim’s consistent

accusation against him.

68. It is pertinent to mention that sections 215 and 464 of the Code of

Criminal Procedure require the court to consider whether the difference

misled the accused and occasioned any failure of justice at any point of

time. It is not in dispute that the allegations related to the same child,

the same appellant, and a series of sexual assaults within the same

house, in a short period of time around December 2015. The deposition

of PW-1 was tested on cross-examination by the appellant. We do not

find any indication that the description in the Charges in any manner

prevented the appellant from meeting the case or advancing a defence

32

which was otherwise available to him. It is therefore held that the

appellant has not been prejudiced in any manner which could persuade

this court to set aside the order of conviction.

69. In view of the foregoing discussions, this court does not feel that the

contradictions highlighted by the defence are so glaring as to result in

putting a doubt in the mind of the court or discrediting the testimony of

PW-1 which has remained throughout consistent and specific so far as

the repeated sexual act committed against her by the applicant.

VIII. CONCLUSION ON CONVICTION

70. Upon independent analysis of the entire evidence, we find that the

evidence of the victim girl on the core allegation of aggravated

penetrative sexual assault is reliable. The prosecution has also

established the foundational facts necessary for invocation of the

presumption under Section 29 of the Act.

71. The appellant has failed to rebut such presumption. The discrepancies

highlighted on behalf of the appellant do not affect the substance of the

prosecution case. The delay in lodging of the FIR also does not render

the prosecution case doubtful. Upon our reappraisal of evidence, we

find no ground to interfere with the impugned judgment of the trial

court.

72. Accordingly, the conviction of the appellant under Section 376(2)(i) and

506(II) of the IPC and Section 6 of the POCSO Act is affirmed.

IX. SENTENCE

73. We have independently accessed the sentence imposed in the impugned

judgment given by the trial court to the appellant. The evidence of PW

1, along with PW5 and other corrobo rating evidence on record,

establishes the charge of aggravated penetrative sexual assault without

33

any doubt. We therefore are not hesitant to convict the appellant under

Section 376(2)(i) and Section 506(II) of the Indian Penal Code read with

Section 6 of the Protection of Children from Sexual Offences Act, 2012,

by order of conviction dated April 8, 2019.

74. The question of sentence of the appellant, however, requires a different

exercise of judicial discretion. Section 6 of the POCSO Act, as it stood

on the date of commis sion of the offence, prescribed rigorous

imprisonment for a term not less than 10 years which could extend to

life imprisonment, as well as fine. The aforesaid penal provision

therefore leaves a range within which an accused can be sentenced in

light of the facts and circumstances of each case.

75. The Supreme Court in Sachin v. State of Maharashtra , 2025 INSC

716, which held that the Court while affirming an order of conviction

can modify and/or alter the sentence given the facts and circumstances

of that case. In Pradeep Kumar v. State , 2024:DHC:53, paragraphs

29–35, the conviction under Section 6 of the POCSO Act was

maintained while the sentence was reduced after considering the period

of custody, satisfactory prison conduct, remission, absence of prison

punishment and other criminal involvement, and the possibility of

rehabilitation.

76. The sentence of 13 years and 6 months, in our view, balances the

gravity of the offence with the circumstances of this case relevant for

the purpose of sentence. This court has given due weight to the

attending circumstances of this case. The report dated July 27, 2026,

submitted by the Superintendent, Baruipur Central Correction Home

shows that the Appellant has continuously remained in custody since

his arrest on March 14, 2016, and was never released on bail. The

report records that the Appellant has earned remission of 498 days as

on June 30, 2026, so that the period of actual detention together with

the remission earned shows that more than 10years and four months

and 14 days of detention of the Appellant. The report further shows

34

that the conduct of the Appellant towards his inmates and his overall

conduct in the jail is satisfactory. No adverse report or punishment in

the prison has been recorded against the Appellant. The accused has

no criminal antecedents. He was also released on parole on two

occasions for three days each, with police escort, and during such

parole, no adverse report was received regarding his conduct. These

circumstances indicate substantial period of custody, satisfactory post

conviction conduct of the Appellant and reasonable prospect of

reformation.

77. While the conviction of the Appellant under Section 376(2)(i) and

Section 506(II) of the Indian Penal Code read with Section 6 of the

Protection of Children from Sexual Offences Act, 2012, is affirmed, the

sentence of rigorous imprisonment for 15 years imposed thereunder is

modified to a rigorous imprisonment of 13 years and 6 months. The

sentence imposed under Section 506 (II) of the IPC is also maintained.

All the sentences shall run concurrently. The Appellant shall receive

the benefit of set-off under Section 428 CrPC, in accordance with law.

78. Accordingly, the CRA No. 594 of 2019 is dismissed. The judgment of

conviction dated April 8, 2019 passed in Sessions Trial No. 05 (06) of

2016 arising out of Special Case No. 100 of 2016 is affirmed. The

appellant is convicted of the charges under Section 376(2)(i), Section

506(II) IPC and Section 6 of the POCSO Act. However, the order of

sentence dated April 10, 2019 is modified in the manner as stated

hereinabove.

79. Accordingly, CRAN 3 of 2026 also stands disposed of.

X. COMPENSATION AND OTHER DIRECTIONS

80. The victim is entitled to compensation and reparation for the heinous

crime that has been committed against her at such a tender age. Such

a reparation is because of the failure of the State to discharge its

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sovereign duty to protect and secure its citizens from crime. Refer to

Bijoy @ Guddu Das v. State of West Bengal , reported at 2017 Cri

LJ 3893. The Victim Compensation Fund has been duly notified by the

State Government under Section 357A, CrPC, which entirely prescribes

the minimum amount of compensati on that may be awarded for

various injuries.

81. While we affirm the judgment of the trial court, we find that the learned

trial court has awarded compensation of a sum of Rs.3,00,000 to the

victim girl under the West Bengal Victim Compensation Scheme, 2017.

But it appears that the learned trial court has omitted to apply the Note

appended to the Schedule under the West Bengal Victim Compensation

Scheme, 2017, which provides that where the victim girl is below 14

years of age, the compensation shall be increased by 50% over the

amount specified in the schedule. The Schedule is reproduced

hereunder:

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82. Although the offenses under the POCSO Act are not specifically

mentioned in the above schedule, the benefit of the compensation to

victims of sexual offences under the said Act has been extended to such

victims under the POCSO Act as well in Bijoy alias Guddu (supra).

83. It is evident that the victim girl in the present case was below the age of

12 years on the date of the occurrence of the offence and therefore is

entitled to such additional compensation. Accordingly, the

compensation awarded by the trial court is enhanced by a further sum

of Rs.1,50,000, thereby making the aggregate compensation payable to

the victim a sum of Rs.4,50,000. If the sum of Rs.3,00,000 has already

been paid to the victim girl, the balance sum of Rs. 1,50,000 shall be

released by the State within 30 days from the date of communication of

this judgment, in accordance with the Scheme and for the benefit of the

rehabilitation of the victim. If the said sum of Rs. 3,00,000/- has not

yet been paid to the victim girl till date, the entire sum of Rs.

4,50,000/- shall be paid to her within 30 days from the date of

communication of this judgment. The Trial Court shall ensure

compliance of this part of the direction regarding payment to the victim

girl.

84. We are compelled to record, with anguish and disappointment, that

notwithstanding statutory provisions of the POCSO Act, the name and

other particulars regarding the identity of the victim girl were not

redacted by the trial court at different stages of the proceedings.

Several portions of the deposition and other documents forming part of

the lower court records disclose her name and identity. Such disclosure

is not a mere procedural irregularity, it is contrary to the mandate of

Section 33(7) of the POCSO Act, and it infringes upon the child's right

to privacy and dignity, besides exposing her to stigma. The trial court

shall, before granting inspection or supplying any of the records

relating to the POCSO Act, must ensure that the name, address, and

other particulars which are capable of identifying the victim are

suitably redacted.

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85. Let the lower court records, together with a copy of his Judgement, be

transmitted to the learned Trial Court forthwith for necessary

information and records.

86. The identity of the victim shall continue to remain protected in all

copies uploaded and supplied to parties.

87. Urgent certified copy of this Judgment, if applied for, shall be made

available to the parties upon compliance with due formalities.

I agree.

(Rajasekhar Mantha, J.) (Anuj Singh, J.)