No Presumption Of Guilt Of Accused U/S 29 POCSO Act If Prosecution Fails To Establish Probability Of Foundational Facts: Madras High Court

“In a case under POCSO Act, the prosecution is required to prove some foundational facts, not beyond reasonable doubt, but by prepondrance of probability. If the prosecution is not able to prove the foundational facts of the offence based on a prepondrance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused,” the court observed.

Justice K Murali Shankar thus acquitted a man, Mariappan, convicted under the Act after noting that the prosecution had failed to prima facie prove that the accused had committed penetrative sexual assault on the victim girl.

The prosecution case was that Mariappan, who was a fruit vendor had called the victim and her brother to his house on the pretext of giving them fruits free of cost and giving them juice mixed with alcohol, had committed penetrative sexual assault on the child. The prosecution had submitted that both the children slept off due to intoxication and when the victim girl woke up in the morning, Mariappan gave her some money and threatened to kill her if she disclosed the incident to any person. It was also informed that the victim was later found to be pregnant and delivered a child after which the complaint was registered.

The Sessions Judge had convicted Mariappan under Section 363 (hurt) and 506(i) (criminal intimidation) IPC along with the POCSO Act.

The court noted that in cases involving offences under the POCSO Act, the prosecution was required to prove some foundational facts by preponderance of probabilities. According to the court, the three foundational facts that the prosecution had to prove was – first, that the victim was a child below the age of 18 years; second, that the victim was subjected to penetrative sexual assault; and third, that it was the accused who had committed the penetrative sexual assault.

With respect to the first fact, the court noted that the trial court had concluded that the victim was born on March 2005, and was thus a minor at the time of the incident after looking into the evidence of the headmaster and other documents. The court also noted that this fact was not disputed by the appellant/accused.

With respect to the second fact, the court was satisfied that the victim was subjected to penetrative sexual assault since the same was proved by the victim’s pregnancy and subsequent birth of the child.

With respect to the third fact, the court noted that neither the victim nor her brother had deposed that they witnessed the appellant committing sexual assault. The court also observed that though the appellant had admitted to the victim that he had committed sexual assault on her, and such admission would be evidence as res gestae, the victim had neither spoken about this to her family immediately nor in her statement under Section 164 CrPC.

The court also noted that though under Section 53A of the Evidence Act states that the character of the victim is not material in cases relating to rape, the same becomes relevant when the accused had taken a categorical stand that he was falsely implicated in the case. In the present case, the court noted that as per the evidence given by the victim’s mother and sister, the victim and her brother were in the habit of drinking.

More importantly, the court also noted that a DNA test conducted on the victim, the child and the accused concluded that the accused was not the father of the child born to the victim. Thus, considering the inordinate delay in filing complaint, fixing the accused, non-conduct of potency test and the results of DNA test, the court raised suspicion in the entire prosecution case and noted that the sentence was liable to be interfered with.

“Considering the inordinate delay in lodging the complaint, fixing the accused belatedly, non-conducting of potency test and the negative DNA report, this Court has no hesitation to hold that these aspects indeed create a great suspicion over the entire prosecution case…. Consequently, this Court concludes that the prosecution has miserably failed to prove the main charge under the POCSO Act and the incidental charges under Sections 363 and 506(i) I.P.C., and as such, the judgment of conviction and sentence passed by the trial Court is liable to be set aside,” the court said.

No Child Should Be Bastardised

The court also lamented that the police had failed to identify the real culprit even after knowing that the accused was not the biological father of the child born to the victim. The court added that it was painful that the police had stopped their investigation with the accused, because of which the real culprit was roaming in the society.

“It is quite painful to note that the respondent police, had stopped its investigation with the accused, even after knowing that he is not the biological father of the child born to the victim girl. The respondent police has failed in its lawful duty of finding out the real culprit who made the victim girl pregnant,” the court said.

Noting that no child should be allowed to be bastardized, the court directed the police to proceed with further investigation to find out the real culprit within a period of four months. To negate the possibility of implicating other innocent persons by the police agency, the court also directed the police to conduct DNA test on the suspected accused without arresting them, and proceed with law only if the test proves positive.

Counsel for Appellant: Mr.K.Muthumalai

Counsel for Respondent: Mr.R.Meenakshi Sundaram Additional Public Prosecutor

Citation: 2023 LiveLaw (Mad) 275

Case Title: Mariappan v Inspector of Police

Case No: CRL.A(MD).No. 78 of 2023