Prosecution Cannot Be Completely Absolved Of Its Duty Despite The Presumption Under S.29 Of The POCSO Act: Calcutta HC [Read Judgment]

Calcutta High Court has passed a significant judgment underlying the nature of responsibility that Prosecution carries under section 29 of POCSO Act. The court held that the word "is

prosecuted" in the aforesaid provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence.

In the present case the appellant had allegedly outraged the modesty of his step-daughter at his residence firstly on the day of Holi i.e. 24.03.2016 and thereafter on 14.04.2016 in the night at 11.00 pm had raped her in a road side jungle near his house. The trial court had convicted the appellant under sections 5 and 6 of POCSO Act and section 356 of IPC, and had sentenced him to undergo life imprisonment with a file of Rs. 50,000

The counsel for the appellant highlighted various inconsistencies in the statements of the victim and other prosecution witnesses to argue the failure on part of the prosecution to link the crime to the accused. The counsel also pointed out that there was an unusual delay in lodging the FIR, there are no public witnesses to testify the presence of the accused with the victim in a public place, the medical report also does not mention forcible rape and the recoveries from the alleged scene of crime were not sent for forensic examination. On the other hand, the state counsel argued that the evidence of a minor victim of sexual assault ought to be treated with due sensitivity and care, more particularly when she has leveled a charge of rape against her step father, and prosecution's case must be seen in light of section 29 of the POCSO Act.

Section 29 of the POCSO Act reads as:

'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'.

The bench comprising of Justice Gangopadhyay and Justice Bagchi refuted the claim of the prosecution and said that if the same is accepted the prosecution would be absolved of the responsibility of leading any evidence whatsoever and the Court would be required to call upon the accused to disprove a case without the prosecution laying the firm contours thereof by leading reliable and admissible evidence. Such an interpretation not only leads to absurdity but renders the aforesaid provision constitutionally suspect. They further went on to declare that a proper interpretation of the said provision is that in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. It is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. Upon laying the

foundation of its case by leading cogent and reliable evidence (which does not fall foul of patent absurdities or inherent probabilities) the onus shifts upon the accused to prove the contrary.

In the present case, the court noted glaring inconsistencies in the narrative of the prosecution which made the statements of the victim unreliable. The absence of forcible rape in medical report and the failure to send recoveries for forensic examination also poked holes in the prosecution's case. The court also criticised the reasoning of the Trial Judge to not to record a finding on the charge framed under sections 9 and 10 of the POCSO Act and/or under section

354 as accused was anyway convicted of a graver charge. It pointed out that when different set of facts give rise to separate offences albeit of the same species, it is incumbent on the Trial Court to record a finding independently on each charge irrespective of the nature of said charges. Therefore, the court opined that one part of the prosecution case improbabilises the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Conviction and sentence was set aside and the appeal was admitted.  

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