THE STATE OF WEST BENGAL vs MOHAN PRASAD DANGAL

IN THE HIGH COURT AT CALCUTTA
CIRCUIT BENCH AT JALPAIGURI
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
HON’BLE JUSTICE ARIJIT BANERJEE
&
HON’BLE JUSTICE CHAITALI CHATTERJEEE DAS


CRA 34 Of 2021
THE STATE OF WEST BENGAL
VS
MOHAN PRASAD DANGAL

For the State : Mr. Jagriti Mishra, Ld. AAAG
Ms. Sunita Mitra Sinha, Adv.
Mr. R. Saha, Adv.

For the Respondent : Mr. Ujjwal Luksom, Adv.
Mr. Sandipan Das, Adv.

Reserved On : 20.08.2026
Judgement On : 03.09.2026
Uploaded On : 03.09.2026



Page 1 of 27

CHAITALI CHATTERJEEE DAS:-
1. Assailing a judgement and order of acquittal dated April 20,2021 passed by the
Learned Special Judge (POCSO) from the charge under section 6 of POCSO Act,
the State has filed this appeal on the ground inter alia that the impugned
judgement proceeds on a fundamental misconception of the scheme of the
POCSO Act 2012 as the Learned Court confined himself only to penetrative
sexual assault under Section 3/5/6 which is incorrect.
Brief fact of the case
2. The factual matrix of the case disclose that the prosecution was set in motion
on July 7, 2018 on the basis of a written complaint lodged by one Pravin Tiwari
of Darjeeling Childline sub centre, Kalimpong on the basis of a telephonic call
received intimating sexual abuse by the accused over a minor boy aged about
11 year of whom he is a local guardian. A team member of said child line met
the victim and came to learn about his ordeal who complained of being sexually
abused for three years and lastly on July 16,2018 at 2.00 pm at the residence
of the accused person. The I/C Kalimpong PS started Kalimpong P.S case no.
215 /18 and the case was endorsed to the investigating officer, Rajesh Khati,
who on completion of the investigation submitted the charge-sheet being C.S
no. 255/2018 dated September 22, 2018 against the accused person in respect
of an offence punishable under Section 6 of POCSO Act.
3. The learned Special Court after considering the materials and record, framed
the charge against the accused person under section 6 of the POCSO Act and
Page 2 of 27

the contents of the same was read over and explained to him who pleaded not
guilty and claimed to be tried. Hence, the trial. The prosecution adduced 8
witnesses, including the victim and exhibited the written complaint, rough
sketch map, index of the P.O the medical report, F.I.R and the endorsement of
I/C on the written complaint. No other documents were exhibited. The learned
special court after analyzing the evidences adduced, and considering the
argument as advanced by both the prosecution as well as defence counsel
passed the order of acquittal and discharged the accused person from the
charge under section 6 of the POCSO Act for aggravated penetrative offence on
the ground that the prosecution failed to establish the charge against the
respondent and the medical evidence did not corroborate the allegations leveled
against the accused by the victim boy. Being aggrieved by this appeal has been
preferred on behalf of the prosecution.
Submissions of the Appellant /State
4. The learned AAAG argued that though the charge was framed under section 6
of the said Act, the victim in his examination in chief described the act of the
accused who took him into the bathroom and removed his clothes and
committed the penetrative offence through the anus of the victim, repeated on
the next day over a long period taking advantage of the absence of the wife of
the accused person who went out for jogging, the Trial Court expressed a doubt
on the element of penetration owing to absence of medical signs and certain
omissions in the previous statement but the evidence of the victim glaringly
established that the accused with the sexual intent compelled the child to
Page 3 of 27

remain naked in his presence, engaged in physical contact of a sexual nature
with the naked child and repeated such acts over an extended period while
occupying a position of trust as local guardian. These acts squarely attract
section 7 punishable under Section 8 of the POCSO Act which was not
considered by the Learned Special Court. It is further submitted that given the
relationship of the accused as local guardian/shared household member and
repeated nature of the acts also attract the aggravated provisions under
Section 9 punishable under Section 10 of the said Act. The trial court
committed a serious error in failing to consider the possibility of conviction
under the appropriate lesser or alternative sections when the evidence
disclosed those offences. An appellate court is fully competent to pass the
conviction under the correct section, if the facts so warrant.
5. That apart, the Trial Court discarded the entire testimony of P.W.1 primarily
because certain graphic details of penetration, pain and the manner of
continuous abuse were not stated before the police or in the statement
recorded under Section 164 Cr.P.C and because the child admitted one
instance of theft and neighbours described him as a habitual liar/thief. It is
settled law that is not a rule of law in India; it
falsus in uno, falsus in omnibus
is at best a rule of caution and the court is bound to separate the grain from
the chaff. Even if some embellishment or omissions are discarded, the core of
the child’s evidence was that the accused made him undress, engaged in
sexual physical contact and repetition of such act in a position of guardianship
remains intact, natural and trustworthy. A child of 11 years cannot be
Page 4 of 27

expected to reproduce every detail with adult like consistency across multiple
statements. Section 29 of the POCSO Act expressly applies to prosecution
under section 3, 5, 7 and 9. Once the foundational facts of sexual assault are
established through the child evidence, the special court shall presume that
the accused committed the offence unless the contrary is proved. Section 30
further requires the court to presume the existence of the requisite culpable
mental state and the accused must prove its absence beyond reasonable doubt.
6. The medical report showing no external injury and absence of suggestion of
penetration is consistent with non-penetrative sexual assault under Section
7/9 of the Act. It is neither contradictory nor fatal. Medical evidence is only
corroborative. The credible testimony of a child victim can form the sole basis
of conviction. The prompt involvement of child line after the disclosure by the
child, the recording of section 164 statement with the assistance of an
interpreter and the position of the accused, being a local guardian further
strengthen the prosecution case. Therefore, it is prayed that the judgement of
acquittal be set aside. Furthermore to hold that even if penetrative sexual
assault under section 6 is not fully established, the evidence clearly proves the
commission of sexual assault under section 7, or aggravated sexual assault
under Section 9, therefore prayed to pass an order of conviction against the
accused under Section 7, read with Section 8 or under Section 9 read with
Section 10 of the POCSO Act, 2012.

Page 5 of 27

Submissions made by Respondent
7. Per contra the point raised by the learned advocate representing the
respondent touches the paramount criminal jurisprudence prevailing in India
that an order of acquittal reinforces the double presumption of innocence in
favour of the accused. Firstly, the presumption of innocence is available to
every accused under fundamental principles of criminal justice, secondly, when
a competent Trial Court, evaluated the evidence and records an acquittal that
presumption stands doubly strengthened and solidified. In this regard put
reliance of the landmark decisions Chandrappa & Ors. versus state of
1 2
Karnataka , Basheera Begum versus Mohammad Ibrahim , Dharam Pal
3
& Ors. Vs. State of Haryana& Anr. , and Rajesh Prasad versus State of
4
Bihar and Anr. where strict boundaries are laid down for appellate court,
entertaining, appeals against acquittal.
8. It is contented further that in the present case the judgement dated April 20,
2021 was passed by the learned Special Judge, Kalimpong based on a flawless,
logical and legal appreciation of materials, contradiction, and absence of
medical Corroboration. Therefore, no interference is warranted by this court.
Depending on circumstantial evidence, the whole chain of circumstances must
be proved by the prosecution to the exclusion of every other hypothesis and
Hon’ble Supreme Court in Pawan Vasudeo Sharma vs State of

1
(2007) 4 SCC 415
2
AIRONLINE 2020 SC 114
3
(2014) 3 SCC 306
4
(2022) 3 SCC 471
Page 6 of 27

5
Maharashtra , has held on March 25, 2019 in a case of circumstantial
evidence, the golden rules ought to be followed and facts proved have to be in
conformity with only the hypothesis of guilt which has been not established by
the evidences to complete the chain of circumstances, pointing to the guilt of
the respondent and hence he is entitled to be acquitted.
9. The entire structure of the prosecution case rest solely on the solitary evidence
of victim boy, but during cross-examination, he made fatal admissions that
completely destroyed the foundation of the prosecution story. It is further
argued that there is a massive unbridgeable omission that amounts to a
material contradiction under Section 145 of the Indian Evidence Act.
Introduction of penile anal penetration during trial testimony is a clear,
deliberate and tutored improvement over his earlier statements. The version of
the victim was not supported with medical report and no external injury was
found anywhere on the body or around the anal area of the victim boy. The bed
ticket, examination report contained no clinical or physical finding suggestive
of penile-anal penetration, redness, tearing or fissure or trauma. Charge under
section 6 of the POCSO Act requires proof of penetrative sexual assault, and in
total absence of physical or medical signs, the claim of penetration stands
completely uncorroborated and falsified. It is the stand taken that independent
local residants of the locality, P.W.4 and P.W.5, gave unambiguous,
unimpeached evidence recording the character and conduct of P.W.1. It is
established that P.W.1 is in the habit of telling lies and stealing articles which

5
(2019) 13 SCC 54
Page 7 of 27

has been admitted by the victim himself of stealing ₹ 500 from the house of the
respondent out of which 300 was recovered from his pocket and ₹ 200 was
spent by him.
10. The contention of the learned advocate is that when a child boy caught
stealing money from his host/guardian is exposed, the possibility of concocting
a false story or being tutored by external NGO to escape punishment or gain
sympathy becomes overwhelmingly high. So far statutory presumption under
Section 29 and 30 of POCSO Act, it provides for statutory presumption of guilt
where a person is prosecuted for committing an offence under section 3, 5, 7 or
9. Section 30 of the said Act provides for presumption of culpable mental state.
It is settled position of law that statutory presumption under Section 29 does
not operate automatically or in a vacuum, the alleged crime beyond reasonable
doubt. In this regard put reliance on the decision of State of A.P versus
6 7
Vasudha Rao and reinforced in Joy Varghese Vs State of Kerala , where it
was held that Section 29 is a rebuttable presumption of law, not an
irrebuttable rule. In the present case, respondent successfully rebutted any
statutory presumption through establishing complete absence of physical or
medical injury through P.W.2 and the admission from P.W.1 that he never
mentioned penetration to Police or Magistrate and also proved that he is a
habitual liar and a thief.
11. The learned advocate further relied upon the decisions on standard of proof
in POCSO case and sole testimony of victim in Gautam Ghosh versus State

6
(2004) 9 SCC 319
7
2019 SCC OnLine Ker 3322
Page 8 of 27

8
of West Bengal . On double presumption in acquittal appeals, put reliance on
9
Ravi Sharma Vs State NCT of Delhi . On corroborate testimony of a child
witness relied upon P. Ramesh Vs State represented by Inspector of
10
Police . Further argued that re trial is not permissible in POCSO cases as a
routine measure and a retrial can only be ordered in highly exceptional
circumstances where a failure of justice is explicitly proven. In this case, the
learned court has judicially applied his mind while passing the judgement after
assessing the evidence used before the court and scope of retrial. In this
instant case would be unfair to the respondent accused who had to undergo
severe hardship to prove his innocence before the court, accordingly prayed for
dismissal of this criminal appeal to uphold and confirm the judgement and
order of acquittal dated April 20, 2021 passed by the learned special judge
Kalimpong.
Analysis
12. Heard the submissions. From the record, the seminal issue falls for
consideration is that as to whether there is any perversity, illegality, or any
other reason which warrants the judgement and order of acquittal to be
interfered with. There are plethora of decisions where strict boundaries are laid
down for the appellate court to entertain appeals from acquittal. In the decision
relied upon by the learned advocate representing the respondent in
Chandrappa versus State of Karnataka (Supra), Basheera Begum vs

8
C.R.A 162 of 2017 Cal (HC)
9
([2022] 12 S.C.R. 257
10
(2019) 20 SSC 593
Page 9 of 27

Mohammad Inrahim (Supra), and Rajesh Prasad versus State of Bihar
(Supra), it has been held that an appellate court should not interfere with an
order of acquittal merely because another view is possible or plausible on the
same set of evidence. If two views are possible on the event, the view favouring
the acquittal of the accused must be adopted. The order of acquittal can be
overturned, only if the trial courts’ finding is palpably wrong, manifestly
erroneous, blatantly illegal or thoroughly perverse.
13. In the light of the foregoing, the facts and circumstances of the present case
merit reconsideration and require to be reexamined. The complaint was lodged
by one Praveen Tiwara, Darjeeling child line sub Centre, Kalimpong run by Bal
Sukha Abhiyan trust as on July 17, 2018, the child line received the call that
the minor boy (victim) aged approximately 11 years is sexually abused by his
local guardian. The team member on the same day met the child and
intervened in the case. The statement of the victim boy was recorded by the
Judicial Magistrate, Kalimpong on July 20, 2018, in terms of the order of
learned Special Judge. Before the learned Judicial Magistrate, the victim stated
that the accused took him to his house for domestic work and was engaged for
cutting grass, cleaning courtyard, bringing water from spring, etc. and he was
to help his wife, Indira in their domestic work. He further disclosed that the
accused, whom the victim called uncle abused him with filthy work and
pushed his penis on his anus for several times. Previously, there was bleeding
from his anus and he suffered severe pain on his rectum and his uncle did
dirty work taking advantage of absence of Indira when she went out time to
Page 10 of 27

time for her work. He pointed out this matter to her who only assured to deal
with uncle, but actually did nothing. Before recording this statement, the
learned Magistrate ascertained his mental capacity as the boy was aged about
11 years and was studying in class 4. The contents of the statement was
subsequently read over and explained to him with an interpreter Sheila Giri,
and he confirmed this as correct statement heard from interpreter. Thereafter
the victim put his signature.
14. The victim boy when deposed before the court on 28th November, 2019 stated
that he studied at Saraswati school at Kalimpong from class 3 to class 4, and
at that time he was staying with the family of accused whom he used to call as
uncle, and used to come to house weekly and stayed there during holidays. The
accused had one son and one daughter and his daughter was studying at
Siliguri in class 12 and the son was in USA. In this case there were sufficient
development made by the victim while adducing evidence and his version of
anal sex did not get support in the medical examination which will be
discussed later on but prior to that the law laid down for considering the
credibility of a child witness needs to be discussed. It is now well settled that
testimony of a child victim if found credible and trustworthy requires no
corroboration. The Protection of Children from Sexual Offences Act, (POCSO) is
designed to save the children from sexual exploitation and abuse. In the case of
11
Tehal Singh and others Versus state of Punjab ,the Hon’ble Supreme
Court observed that in a number of situations and scenario the Justice must

11
AIR(1979) SC 1347
Page 11 of 27

exercise proper caution while considering a child’s testimony. Additionally, the
court must consider whether the testimony of a child witness needs to be
corroborated. However, corroboration is not always necessary and the court
can convict someone if it is convinced of his guilt based simply on a child’s
testimony. In the case of Dattu Ramrao Sakhare and Ors. Versus State of
12
Maharashtra it was held by Supreme Court that a child witness if found
competent to depose to the facts and reliable one such evidence could be the
basis for conviction if the evidence of child witness can be considered. Section
118 of the Evidence Act provides that if a child witness is able to understand
the questions and able to give rational answers the same must be considered.
The evidence of a child witness and the credibility of witness depends upon the
circumstances of each case. It was also held that the decision of the trial court
may, however, be disturbed by the higher court, if from what is preserved in
the records, it is clear that his conclusion was erroneous.
15. The evidentiary value of a child witness has been discussed by the Hon’ble
Supreme Court in the case of State of Madhya Pradesh versus Balveer
13
Singh . Therefore, since this case is solely based upon the testimony of the
child witness it is necessary to carefully evaluate the testimony who was only
aged about 11/12 years and complained of suffering from sexual assault since
he was about 9 years. On perusal of his examination in chief, it is found that
he was brought to Kalimpong by mother of Sumit as Indra aunty was alone at
home and he could assist her in household work and agricultural work. He

12
(1997) 5 SCC 341
13
2025 INSC 261
Page 12 of 27

went to his home at Sikkim during the Sehra holidays, and after he returned to
the house of the accused he was called in the bathroom by him on the pretext
to give him a bath and asked him to take off his clothes which he did, and the
uncle also took off his clothes and both became naked. Then he opened shower
and asked him to hold on the toilet seat, and then he penetrated the victim
anally and continued doing so. He felt pain, but did not cry as uncle told him
not to cry and also to slap him if he cried. Similar incident happened on the
next day and then Aashika and Ashish were also at home.
16. He further narrated that his uncle consumed liquor and was carried home by
his son and son’s friend when he was locked in his room, and on his demand
the victim was asked to unlock the door which he did and he entered into the
room. The accused then took off his clothes and asked him to join him in bed
and started kissing him. He started shouting and crying, then he was slapped.
The room was locked from inside, and after hearing his cry and shouting his
aunt and Ashish came and managed to open the room through ventilator. At
that time his uncle told him to put on his clothes hurriedly and pulled up the
blanket to hide himself. The statement of the victim boy further discloses that a
he was asked to wipe away the vomit , but later on told not to do the same by
the wife of the accused . After that he was taken out from the room and on
asking about the incident he narrated her such sexual assault when her aunt
assured that the same be not repeated in future. The testimony of the victim,
further discloses that he used to study in the evening school and his aunt used
to cook food. The same thing happened when his aunt used to go for jogging
Page 13 of 27

early in the morning and his uncle used to come to his place where he used to
sleep and then sexually assaulted him. This fact he stated while cutting the
grass in the field to one lady and another lady made a telephonic call to child
help and on the next day while he was in school, then 3 to 4 members of the
childline came to his school, asked him about the incident when he narrated
the same he was brought to Kalimpong on motorcycle from the school, and the
complaint was lodged there. He was medically examined and admitted in
hospital for one day and after his discharge from hospital he was brought to
Bal Suraksha Abhijaan in short BSA.
17. It goes without saying this detailed version of the sexual assault and this vivid
description unfolding the character of the accused and the daily sufferings of
the victim were not stated by the victim before the Learned Judicial Magistrate
while recording his statement excepting the anal sex on several times, and pain
felt in his rectum . He stated only that his uncle did dirty work with him by
taking advantage of absence of Indira, and despite his intimation and
assurance, Indra actually did nothing to save him. The said statement was
exhibited by the Judicial Magistrate who recorded the statement. It is a matter
of concern for this Court that whether the difference in his statement to be
considered as embellishment or to be evaluated on the basis of surrounding
circumstances like his fear of getting rebuked or losing the shelter where he
was residing for last few years or uncertainty due to his tender age. During the
cross-examination this victim could not say whether he stated to the police or
the judge that his uncle used to visit his home from his workplace after a gap
Page 14 of 27

of five days or on weekly holidays. He also did not state before the police or the
judge about the son and daughter of the uncle, did not state before the police
or the judge that he was brought to Kalimpong by the mother of one Sumit for
the reason that Indra aunty used to be alone at her home. He did not state
before the police or the judge that he had gone to celebrate Dassera at his
home at Sikkim.

18. He further failed to state before the police or the Judge that after he returned
to the house from Sikkim, his uncle called him to bathroom, saying that he
might not have taken bath and needed a bath. He did not state before the
police or the judge that he asked him to take off his clothes in the bathroom
and he did it. He also did not state before the police or the Judge that his uncle
used to took off his clothes, and in this way, they both became naked or that
the accused opened the shower and asked him to hold the toilet seat. The
learned Special Court further recorded that he did not state before the police or
the judge that the accused inserted his penis into his anus and continued
doing the same. He did not state before the police or the Judge that he felt
pain, but did not cry as his uncle would have slapped him if he had cried. He
did not state before the police or the judge that after sometime he came out of
bathroom after unlocking the door. Therefore, it is clearly visible from the
above that though the victim stated before the Judicial Magistrate about the
anal sex against the accused, who did the same on several times and he
suffered severe pain on his rectum, the testimony was not recorded correctly
Page 15 of 27

that the victim did not mention before the Judicial Magistrate about such
sexual assault on him by his uncle or that he did not feel pain for such assault.
19. The learned Special Court in the impugned judgement on the basis of the
above nature of evidence was of the view that no such cogent evidence found in
order to prove the guilt of the accused person for which he has been charged.
Therefore, the accused should be acquitted in this case. P.W.8, Rajesh Khati
the ASI of police was directed for investigation of the case, and then he took up
the investigation and recorded the statement of the victim boy under Section
161 Cr.P.C. He also sent the boy to District Hospital for medical examination
and examined available witnesses and also informed the CWC Jalpaiguri. The
child was also shifted to the B.S.A. He made the prayer for recording the
statement of the boy under section 164 of Cr.P.C and he collected the medical
report and copy of the statement, that he submitted the charge sheet. This
witness was cross-examined with only four questions which are that the child
was brought to B.S.A on the same day when he was taken back and it is true
that Kalimpong P.S works in collaboration with B.S.A and he denied that his
case map is imaginary one and denied that his investigation only paperwork.
Very interestingly, when it was detected that there is a statement made by a
victim boy about sexual assault by his guardian and the complaint was lodged
on the basis of an intimation received by the CWC and the victim in his
evidence before the court also maintained about his sufferings and some of his
statements were recorded as not stated before the I.O. no question was put to
the I.O to take the contradiction of such admitted fact, hence victim’s
Page 16 of 27

testimony established the foundational facts of sexual acts with sexual intent
by a person in a position of trust. P.W.5, Priya Khati, who deposed that on that
day, she went to Dhara for collecting water and heard hallah that the accused
has committed offence upon the victim boy. However, she said that the victim
boy is in the habit of telling lies and stealing articles, and he also stole money
from her residence.

20. P.W.4 Papu Ghatani did not support the prosecution case, excepting that on
July 17, 2018, after hearing hue and cry he rushed to the spot and there was a
hallah in that locality that the accused has committed offence. However, also
deposed that the victim boy was in the habit of telling lies and stealing articles.
P.W.3 Narendra Chhetri was attached to B.S.A Kalimpong and was a team
member of Childline and on that day about 11 A.M., a call was received by said
Child line from an unknown person stating that a male child of 11 years has
been sexually abused for last three years by the accused and then they left for
the place. They did not find the child at the house, but the accused was there
and from him they came to know that the victim had gone to school which was
situated just below the house. Their team consisted of himself, Praveen Tiruwa
and one Chandra Kala Rai. They met the child at School and they talked to the
child and it was confirmed that he was sexually abused by the accused and he
also informed that on July 16, 2018 at 2 P.M., he was lastly sexually assaulted
and then the complaint was lodged. This witness during his cross-examination
deposed that he stated to the I.O that the victim boy told him that he was lastly
sexually assaulted on July 16, 2018 at 2 P.M., but there is no contradiction to
Page 17 of 27

the statement found from the cross-examination of the Investigating Officer.
Therefore, it is admitted that the victim informed the said person of child line
about the sexual assault, and when lastly took place and that fact was stated
to the Investigating Officer. The victim boy gave his statement in Nepali and his
answers were interpreted to the Judge in English by the interpreter who has
deposed as P.W.7.

21. This interpreter was from BSA where after discharging from the hospital the
victim was kept, and from there brought to Kalimpong Court for recording his
statement. The victim boy during his cross- examination deposed that he did
not understand as to what Sheila auntie has interpreted to the Judge after
hearing his answers. Therefore, the victim boy who did not know Hindi
narrated the incident in Nepali to this above witness, and thereafter what was
told or translated to Judge was beyond his capacity to understand. Even
assuming for the sake of argument that the entire narration of the victim child
is not corroborated by medical evidence and that certain aspects of his
allegation of aggravated sexual assault, as stated before the Magistrate and
subsequently before the court gives rise to some doubt, the evidence on record,
when considered as a whole clearly establishes the material circumstances of
the case.
22. The testimony of the victim, read conjointly with his statement recorded before
the learned Magistrate and other evidence on record, established that the
accused was acting in the capacity of a guardian of the minor victim. It has not
been disputed from any quarter that the victim was residing with the family of
Page 18 of 27

the accused and that he was brought there to assist the wife of the accused in
various domestic activities. Accused, therefore exercised reposition of trust and
authority over the minor child. Evidence further establishes that while
occupying such position, the accused acted with sexual intent and subjected
the minor to act, involved physical contact without penetration. Such conduct,
established squarely falls within the ambit of sexual assault as defined under
Section 7 of the Protection of Children from Sexual Offences Act, 2012. Thus,
notwithstanding the absence of Medical Corroboration regarding penetration or
aggravated sexual assault, the approved circumstances and the testimony of
the victim, considered in their integrity, are sufficient to establish the essential
ingredients of the offence of sexual assault under Section 7 of the Act.
23. The court is unable to accept the contention advanced by the learned
advocate for the respondent that the alleged omission , namely that during
cross-examination, the witness specifically admitted that he had not stated
either before the investigating officer or before the judicial magistrate, while
recording his statement under Section 164 of the Cr.P.C., that the accused had
inserted his penis into his anus, constitutes a massive omission amounting to
a material contradiction within the meaning of Section 145 of the Indian
Evidence Act. On the contrary, as discussed herein the surrounding
circumstances and the testimony of the victim have to be appreciated in their
proper perspective. The victim was a child of about 11 years of age and had
been subjected to sexual assault since the age of nine by none other than his
guardian, in whose family, he was compelled to reside. The victim had
Page 19 of 27

described repeated acts of sexual abuse, including the anal penetration, which
resulted in bleeding and severe pain in the rectal region. He further disclosed
that the accused, taking advantage of the absence of his wife, subjected him to
reprehensible acts. These circumstances cannot be viewed in isolation while
assessing the alleged omission. The testimony of a child victim, particularly
when subject to repetitive sexual abuse by a person in a position of trust and
guardians, must be assessed having regard to the circumstances in which the
disclosure was made, and the trauma suffered by the child.
24. The learned special court appears to have incorrectly recorded the deposition
of the victim witness to the effect that he had not disclosed the occurrence
either to the investigating officer or to the learned judicial magistrate. It is true
that there may be same embellishment in the detailed description of the
incident as narrated in his deposition and the statement recorded before the
learned Judicial Magistrate, but such development have to be considered in the
light of the surrounding circumstances. It is significant that the victim was
taken to the hospital and was admitted for a day. This fact is borne out by the
discharge certificate, marked with exhibit 6, wherein the final diagnosis was
recorded as sexual assault. It is equally difficult for this court to accept the
contention advanced by the learned advocate for the respondent regarding the
alleged crystal clear motive for false implication. It has been argued that since
the child had allegedly been caught stealing money from his host/guardian, the
incident was exposed and, therefore, the possibility of the child concocting a
false story or being tutored by an external NGO, either to escape punishment,
Page 20 of 27

or to gain sympathy, becomes overwhelmingly probable. Such a contention,
however, does not appeal to the judicial conscience. The victim was a child of
about 11 years of age. Even if the contention advanced by the respondent is
accepted for the sake of argument, it is difficult to conceive that a child of such
tender age would deliberately concoct a false allegation of sexual assault
against a person with whom he had been residing for a considerable period and
thereby implicate him in an offence of such grave and humiliating nature. The
mere existence of alleged incident of theft cannot, by itself, furnish a
sufficiently cogent or convincing motive for the child to fabricate the allegation
of sexual assault against his host and guardian. No prior complaint was lodged
by any of the family member against the minor about his habit of stealing and
he was not ousted from their house, despite having such alleged tendency of
making false and concocted story or habit of stealing.
25. In terms of section 29 of the Act, 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 admitted or attempted to commit the offence as the case, maybe,
unless the contrary is proved. In section 30 of the Act, the presumption of
culpable mental state has been described which is-
“ 30. Presumption of culpable mental state .—(1)
In any prosecution for any offence under this Act
which requires a culpable mental state on the part of
the accused, the Special Court shall presume the
existence of such mental state but it shall be a
defence for the accused to prove the fact that he had
Page 21 of 27

no such mental state with respect to the act charged
as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be
proved only when the Special Court believes it to exist
beyond reasonable doubt and not merely when its
existence is established by a preponderance of
probability.
Explanation.—In this section, “culpable mental state”
includes intention, motive, knowledge of a fact and
the belief in, or reason to believe, a fact.”
In this section, culpable mental state includes intention, motive, knowledge of
fact and the believe in or reasons to believe a fact. The decision relied upon in
this regard in State of AP versus Vasudeva Rao(Supra) was reinforced in Joy
Varghese (Supra) where it was held that presumption under section 29 is a
rebuttable presumption of law, not an irrebuttable rule. If the initial
prosecution evidence is riddled with material contradiction, lack of medical
corroboration and evidence of habitual lying/theft, the fundamental facts
themselves failed to be established. Even if the initial burden was shifted, the

defence can successfully rebut the presumption on the standard of
preponderance of probabilities through effective cross-examination of
prosecution witnesses, alone. The contention was that, had the said initial
burden shifted, the defence could have successfully rebutted any statutory
presumption through the admission from P.W.1 that he never mentioned
penetration to police or Magistrate and establishing complete absence of
physical or medical injury through P.W. 2.
26. This Court cannot remain oblivious to the fact that the victim consistently
complained of such sexual assault over a period of approximately three years,
commencing when he was only nine years of age. The circumstances, in which
the child made such disclosures, and the fact that he was taken to the hospital
and admitted there in for a day, also assume significan ce. It is not clearly
Page 22 of 27

established as to why a child allegedly suffering only from rashes would require
admission to hospital for a day, particularly when the Discharge certificate
records the final diagnosis as sexual assault. This circumstance, therefore,
cannot be brushed aside while appreciating the testimony of the victim and the
overall circumstances of the case. In the decision of Sandeep Das versus
14
State of West Bengal , it was held by our Court that it is neither absurd nor
improbable when minor victims are subjected to sexual assault by a person in
trust, they become so perplexed that they take time to come out even to their
closest one, including parents. In the present case the child had no other
person to narrate since he was given by his parents to this family and the child
has not uttered a single word about intimating anything to his parents or any
scope was there to that extent. Considering the fact that the child did not make
any other complaint against either the accused or any other member of the
family we do not consider that the testimony of the victim is so patently absurd
and inherently improbable to be thrown away completely as an evil motive of
falsely implicating the accused only out of grudge as the victim had a prior
incident of stealing articles and telling lies.
27. Therefore, having regard to the discussions made herein above, the Court is
of the considered opinion that sufficient materials are available on record to
attract the other applicable provisions of the Protection of Children from Sexual
Offences Act, 2012, even if the charge under section 6 of the said Act is held
not to have been proved.

14
2018 SCC OnLine Cal 13258
Page 23 of 27

Section 7 of the POCSO Act reads as;
“7. Sexual assault.— Whoever, with sexual intent
touches the vagina, penis, anus or breast of the child
or makes the child touch the vagina, penis, anus or
breast of such person or any other person, or does
any other act with sexual intent which involves
physical contact without penetration is said to commit

sexual assault.”
The punishment for sexual assault is described in Section 8 of the Act. Section
8 reads as;
“8. Punishment for sexual assault .—Whoever,
commits sexual assault, shall be punished with
imprisonment of either description for a term which
shall not be less than three years but which may
extend to five years, and shall also be liable to fine.”
28. Section 9 (n) of the Act reads as:
“(n) whoever, being a relative of the child through
blood or adoption or marriage or guardianship or in
foster care, or having domestic relationship with a
parent of the child, or who is living in the same or
shared household with the child, commits sexual
assault on such child;”
Section 10 of the Act reads as:
“10. Punishment for aggravated sexual
assault .—Whoever, commits aggravated sexual
assault shall be punished with imprisonment of either
description for a term which shall not be less than five
years but which may extend to seven years, and
shall also be liable to fine.”
Page 24 of 27

The learned Trial Court ought to have considered the case in the light of above
discussion and instead of passing order of acquittal in favour of the accused
should have passed order of conviction under section 7 and 9 of the POCSO
Act.
Conclusion
29. In the light of above provisions and the discussions, we are of the considered
view that prosecution has established the foundational facts that the victim
was a minor and gave a consistent account of sexual assault, which is
corroborated by the witness from the child line and therefore, the statutory
presumption under Section 29 and 30 of the POCSO Act stands attracted. The
burden therefore shifts upon the accused to rebut this presumption which he
has failed to do. As per Section 118 of the Evidence Act, before the evidence of
a child witness is recorded, a preliminary examination is to be conducted by
the trial court to ascertain if the witness is capable of understanding the
sanctity of giving evidence and the import of the questions that are being put to
him. In the present case, the child victim was found to be competent to depose
and there is no requirement or condition that evidence of a child witness must
be corroborated before it can be considered. If the evidence of the child
contains the relevant ingredients of the crime without improvements or
embellishment, the same does not require any corroboration whatsoever. In
order to find out truth, this court is of the view that a part of the statement of
the witness, even if found not convincing or not material, if can be separated
from the other part, which does not appear to be tutored and is consistent,
Page 25 of 27

such remaining part, if inspires confidence that can be believed and taken into
consideration for corroboration. The Learned Special Judge miserably failed to
consider that aspect of the matter.
30. Hence this Court finds the judgement delivered by the learned special court
to be palpably wrong, manifestly erroneous, blatantly illegal and thoroughly
perverse, and therefore is liable to be set aside. Since the offences of which the
accused is held guilty are lesser offence than the offence charged with under
Section 6 of the POCSO Act, there is no need to remit back the matter for a de
novo trial.
31. Therefore we are of considered view that the Judgement calls for our
interference.
32. Hence it is
Ordered
33. This criminal appeal being CRA 34 of 2021 filed by the State is hereby
allowed.
34. The impugned Judgement and order of acquittal dated April 20, 2021 passed
by the Learned Special Court in Special POCSO case no. 14/2018 is hereby set
aside.

35. The sole Respondent/Mohan Prasad Dangal accused is held guilty of the
offence under Section 7 read with Section 8 and Section 9(n) read with Section
10 of the POCSO Act.
36. The Convict Mohan Prasad Dangal is directed to surrender before the Learned
Trial Judge by 3 days from this date and on his surrender the Learned Trial
Page 26 of 27

Judge shall take him into custody .If convict fails to surrender on or before the
appointed day the Learned Trial Judge shall issue warrant of arrest against
him. It is made clear that within 3 days of his surrender or production in
execution of warrant of arrest, as the case may be the matter is to be reported
by the State before this Bench and necessary sentence will be pronounced
against him after hearing him.
th

37. The State is directed to produce the convict on 8 day of September 2026
at 1p.m before this court virtually from a remote point for hearing on the point
of sentence .Liberty is given to the State either to produce the Convict virtually
through a remote point or physically before this court on the aforesaid date
and time. Learned Registrar Circuit Bench at Jalpaiguri is directed to facilitate
the Convict and the Learned Defence Counsel to appear virtually from the
circuit Bench at Jalpaiguri if it is asked for. .
38. A copy of this order be forthwith forwarded to the Learned Registrar Judicial
Service for the purpose of communicating the order forthwith to the Learned
Special court (POCSO) Kalimpong through the Learned Registrar Circuit Bench
at Jalpaiguri for information and taking necessary compliance.
39. Urgent certified copy if applied by any of the parties to be supplied subject to
observance of all formalities.

I agree

(ARIJIT BANERJEE, J.) (CHAITALI CHATTERJEE DAS, J.)
Page 27 of 27