1. The Judgment and Order dated 25th and 26th August 2021, passed by the Learned Additional Sessions Judge, 1st Court at Siliguri cum Special Judge (under POCSO Act), 1st Court, Siliguri, Darjeeling, in connection with Special POCSO Case No. 1(12) of 2016 (arising out of Matigara P.S. Case No. 704 of 2016), has been challenged in the present criminal appeal. The impugned judgment was challenged primarily on the grounds that the Learned Trial Judge failed to consider the evidence in its proper perspective and that the judgment was based on surmises and conjectures. It was further contended that the parents of the victim girl, who are vital witnesses, were not examined by the prosecution, and that there are significant discrepancies between the statement of the victim recorded under Section 164 Cr.P.C. and the complaint. Additionally, it was argued that PW-2 is a hearsay witness upon whom the Learned Trial Judge erred in relying, and that neither the Section 164 Cr.P.C. statement nor the sketch map was formally exhibited during the trial. Accordingly, the appellant sought to set aside the judgment of conviction and order of sentence.

2. Mr. Banerjee, Learned Counsel appearing for the appellant, categorically submitted that the prosecution failed to prove its case against the appellant beyond all reasonable doubt. He argued that despite such fundamental lacunae, the Learned Trial Judge committed a grave error in convicting and sentencing the appellant.

3. Mr. Gobinda Ghosh, Learned Counsel appearing for the State, submitted that the judgment passed by the Learned Trial Court is well-reasoned and free from any perversity. He asserted that the Learned Trial Judge convicted the accused after due consideration of all available materials on record.

4. Having perused the record and the impugned judgment, the brief facts of the case are as follows:

On 13.12.2016, the de facto complainant lodged a written complaint alleging that on 12.12.2016 around 6:00 PM, his sister was invited to the house of her friend, SonaliKarmakar. Taking advantage of the situation, the appellant—father of the victim’s friend—outraged the modesty of the victim and attempted to commit rape upon her. The victim somehow managed to escape and reported the incident to the de facto complainant.

5. Upon receipt of the complaint, Matigara P.S. Case No. 704 of 2016 dated 13.12.2016 was registered under Section 376(2)(i)/511 of the IPC read with Sections 8 and 12 of the POCSO Act. Upon completion of the investigation, the appellant was charge-sheeted, and formal charges were framed against him under Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act. The charges were read over and explained to the appellant, who pleaded not guilty and claimed to be tried.

6. To substantiate its case, the prosecution examined 11 witnesses. In his examination under Section 313 Cr.P.C., the appellant denied all incriminating allegations and declined to adduce any defence evidence.

7. The Learned Trial Judge passed the judgment of conviction and order of sentence on 25.08.2021 / 26.08.2021. The defence took the plea that the appellant was falsely implicated and that the prosecution failed to establish its case beyond reasonable doubt.

8. It is a settled principle that in offenses involving molestation or attempted rape, the perpetrator typically acts in the absence of public view, exploiting the victim’s isolation. Consequently, the non-availability of independent eyewitnesses in such cases is common and cannot serve as an automatic ground for acquittal. In such circumstances, conviction can be based solely on the deposition of the victim girl, provided her testimony inspires confidence.

9. In the present case, the victim (PW-1) testified before the Court as follows:

                "I am aged about 13 years. Now I am reading in Class-VII. I know JitenKarmakar. The accused JitenKarmakar is present in Court and identified. I know SonaliKarmakar. SonaliKarmakar is my friend. At one point of time SonaliKarmakar was my class friend and now SonaliKarmakar has left her study. The accused JitenKarmakar is the father of SonaliKarmakar. I am residing at Khaprail.

               The house of accused JitenKarmakar is situated just in front of my house. The incident happened on December 12, 2016 at around 6 PM. On the aforesaid date at the relevant point of time I was in the house of the accused person with my friend SonaliKarmakar. Then SonaliKarmakar asked me to stay at her home, because she wanted to go to a shop. As per the instructions of SonaliKarmakar I remained at her home and SonaliKarmakar went to a nearby shop. When I was alone in the said home and Sonali went to a nearby shop I was cutting vegetables (onion). Then the father of SonaliKarmakar, the accused JitenKarmakar, touched my breast with his hand and also touched my private parts with his hand. Thereafter I left the room of SonaliKarmakar in tears and went back to my home. I informed the aforesaid incident to my elder sister...

               After the incident I was taken to North Bengal Medical College and Hospital... I made a statement before the Ld. Judicial Magistrate which was reduced into writing by the Ld. Judicial Magistrate as per my instructions. Thereafter I put my signature in the said statement..."

Cross-examination (on behalf of accused JitenKarmakar):

               "My family consists of 10 family members. The distance between my house and the house of JitenKarmakar is 3 feet... I made the same statement before the Ld. Judicial Magistrate regarding the incident which I made to my elder sister after the incident. When my statement was reduced into writing by the Ld. Magistrate, thereafter it was read over and explained to me by the Ld. Judicial Magistrate, I found that my statement was recorded by the Ld. Judicial Magistrate correctly..."

10. From her testimony, it is evident that the victim explicitly detailed the manner in which she was molested. During crossexamination, she affirmed having narrated the exact incident before the Learned Judicial Magistrate who recorded her statement under Section 164 Cr.P.C.

11. Though the Judicial Magistrate who recorded the Section 164 statement was not examined as a witness, the victim verified her signatures and confirmed that the statement was recorded as per her instructions and read over to her. In view of such affirmation, the non-examination of the Judicial Magistrate does not render the judicially recorded statement invalid or unusable.

12. It is true that minor discrepancies exist regarding the time of occurrence. In her Section 164 statement, the victim stated that she visited her friend’s house around 3:00 PM, whereas in the FIR, the complainant stated she went around 6:00 PM. In her oral evidence, PW-1 maintained that the incident took place around 6:00 PM on 12.12.2016. However, apart from this minor temporal variance, there are no material infirmities or inherent contradictions in the evidence of PW-1.

13. Section 29 of the POCSO Act provides as follows:

               29. Presumption as to certain offences.— Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

14. The record reflects that the incident occurred on 12.12.2016 at around 6:00 PM, and the FIR was lodged on 13.12.2016 at 11:30 AM. Thus, there is no unexplained delay in lodging the FIR. Where the victim's evidence inspires confidence, the Court can rely upon it to trigger the statutory presumption under Section 29 of the POCSO Act, shifting the burden onto the defence to rebut the same.

15. The defence produced no material to demonstrate any motive for false implication, nor was any prior enmity shown between the families, who lived only three feet apart and enjoyed cordial relations. Furthermore, while the sketch map of the crime scene was not formally exhibited, the proximity of the two adjacent houses was uncontroverted, and the place of occurrence was never disputed. Thus, its non-exhibition does not deal a fatal blow to the prosecution case.

16. Once the foundational facts were established by the prosecution, a heavy burden rested upon the accused to rebut the presumption. Apart from general suggestions of false implication, no effective cross-examination or rebutting evidence was brought on record. The Learned Trial Judge thoroughly evaluated the evidence of all witnesses alongside the statutory provisions under Sections 7, 29, and 30 of the POCSO Act. The findings do not suffer from any perversity or illegality.

17. Accordingly, the impugned judgment of conviction and order of sentence passed by the Learned Trial Court are hereby affirmed.

18. The appellant, Jitendra @ Jitendar Karmakar, who is currently on bail, is directed to surrender before the Learned Trial Court within one month from this date to serve out the sentence imposed upon him, otherwise the Learned Trial Judge shall issue warrant of arrest against him and shall take appropriate steps in accordance with law.

19. CRAN 1 of 2022 is also disposed of.

20. Let a copy of this judgment along with the Trial Court Records (TCR) be transmitted to the Learned Trial Court forthwith for information and necessary action.