Presumption U/s 29 POCSO Act Does Not Affect Obligation Of Prosecution To Produce Admissible Evidence To Prove Essential & Foundational Facts: Kerala HC [Read Judgment]

The Kerala High Court has observed that the presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 Act [POCSO] does not , in any way, affect the obligation of the prosecution to produce admissible evidence to prove the essential and foundational facts.

When the prosecution produces admissible evidence to prove the foundational facts constituting the offence, the accused must, at the pain of losing, prove that he did not commit the offence on the principle of preponderance of probability, Justice PB Suresh Kumar observed while dismissing an appeal filed by an accused in a POCSO case.

The court observed that the literal meaning of the words used in Section 29 of POCSO Act, appears to be constitutionally suspect and against the presumption of innocence available to the accused in a criminal case. The court also added that the presumption of innocence cannot be equated per se with the constitutional right to life and liberty adumbrated in Article 21 of the Constitution of India. Taking note of the procedure required to be adopted while trying POCSO case, the judge observed:

"In so far as the provisions contained in Sections 226, 227 and 228 of the Code apply for trial of the cases under the POCSO Act, there cannot be any doubt that it is obligatory for the prosecution to make available before the court the evidence sufficient for proceeding against the accused and Section 29 of the POCSO Act does not absolve the prosecution from the said obligation and if evidence sufficient for proceeding against the accused are not made available, the accused is entitled to be discharged."

The court also added that, in a criminal trial, the 'legal burden', namely the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts, and notwithstanding the same, the 'evidential burden' namely the burden of proving one or more fact/facts in issue may be laid by law upon the accused. It said:

"Like similar statutory provisions dealing with presumptions, Section 29 of the POCSO Act is also only a rule shifting the evidential burden in a prosecution. Generally, in a criminal trial, the Prosecution would fail even if the accused does not adduce any evidence, or if the evidence adduced by the prosecution do not prove beyond reasonable doubt the guilt of the accused. But, in a trial under the POCSO Act, Section 29 operates at the stage after the stage under Section 232 of the Code. In other words, in a given case, if the prosecution adduces evidence to prove the essential and foundational facts constituting the offence, notwithstanding its reliability and trustworthiness, it will be presumed that the accused has committed or abetted or attempted to commit the offence alleged against him, unless the contrary is proved by him, for at this stage, onus to disprove the fact of commission of the offence shifts on to the accused. "

Regarding the manner in which the accused is required to rebut the presumption, the court said:

"Thus, an accused in order to prove his case may or may not produce evidence and need only show on the totality of all the materials available on record that the fact presumed cannot be said to have been proved on the touchstone of preponderance of probability, for which, he may even rely on patent absurdities or inherent infirmities or improbabilities in the prosecution case leading to an irresistible inference of falsehood in the prosecution case."

Taking note of the evidence on record, the court observed that the prosecution has adduced evidence to prove all the foundational facts to establish the guilt of the accused in this case and that the accused has failed to prove his innocence on the principle of preponderance of probability 

Case name: David vs. State of Kerala

Case no.: CRL.A.No.419 OF 2019

Coram: Justice PB Suresh Kumar

Counsel: Advocates S.Rajeev, KK Dheerendrakrishnan

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