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 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 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 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 falsus in uno, falsus in omnibus is not a rule of law in India; it 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 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 6 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 Karnataka1, Basheera Begum versus Mohammad Ibrahim2, Dharam Pal & Ors. Vs. State of Haryana& Anr.3, and Rajesh Prasad versus State of Bihar and Anr.4 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 Maharashtra5, 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 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 Vasudha Rao6 and reinforced in Joy Varghese Vs State of Kerala7, 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 of West Bengal8. On double presumption in acquittal appeals, put reliance on Ravi Sharma Vs State NCT of Delhi9. On corroborate testimony of a child witness relied upon P. Ramesh Vs State represented by Inspector of Police10. 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 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 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 Tehal Singh and others Versus state of Punjab11,the Hon’ble Supreme Court observed that in a number of situations and scenario the Justice must 11 AIR(1979) SC 1347 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 Maharashtra12 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 Singh13. 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 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 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 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 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 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 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 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 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, 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 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 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 State of West Bengal14, 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 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.” 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, 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 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. 37. The State is directed to produce the convict on 8th 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.)