Presumption Of Guilt U/S 29 Of POCSO Act Can't Be Drawn Due To Lack Of Evidence: Punjab & Haryana HC Sets Aside Rape Conviction

The Punjab & Haryana High Court has acquitted two men in a sexual assault case under the Protection of Children from Sexual Offences (POCSO) Act, observing that the presumption under Section 29 for abetting or attempting to commit certain offences under the Act cannot be drawn on account of lack of evidence.

As per Section 29 of the POCSO Act, where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3(Penetrative sexual assault), 5(Aggravated penetrative sexual assault), 7(Sexual assault) and section 9(Aggravated sexual assault) 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.

A division bench of Justice Sanjeev Prakash Sharma and Justice Sanjay Vashisth said, "The alleged guilt of the appellants is not proved beyond reasonable doubt. Even, in the absence of the incomplete evidence, presumption under Section 29 of POCSO Act would not be applicable."

The court further said that the allegations have been levelled by the girl alone which require deeper examination.

The FIR alleged that the minor girl–who was stated to be 13 years old at the time–was kidnapped in 2018 and upon recovery she stated that she was raped by another accused in 2017. The Trial Court convicted one under Section 4 of POCSO Act for 20 years; Sections 363(kidnapping), 366(Kidnapping, abducting or inducing woman to compel her marriage, etc) IPC and another under Section 6(Punishment for aggravated penetrative sexual assault) POCSO Act for 20 years.

After examining the submissions the Court found the prosecution case doubtful; it noted that in the statement of girl she gave a new version before the Court, which did not support the prosecution story.

"Victim nowhere states anything of her being recovered from the place which is narrated by the official witnesses of the investigation team, this court has no hesitation to hold that on account of false deposition and more to the convenience of the police officials, the story of recovery of the victim is most likely developed by the police on their own and therefore, the recovery of the victim as projected by the prosecution agency seems to be completely false," it added.

The bench highlighted that the prosecution witness are all materially in contradiction with each other and therefore, hence it opined, "that recovery of the victim as projected by the Investigating Agency is completely false."

The division bench concluded that, "from the medical evidence coupled with other circumstances available on record, it comes out that there is incomplete medical evidence and the allegation of committing of the sexual intercourse with the victim is not fully proven."

It further highlighted that, during cross-examination, the investigating officer clearly stated that no investigation was done regarding the kidnapping of girl by the accused from the persons residing near the place of occurrence.

Perusing the medical record, the Court stated that, "From the medical evidence coupled with other circumstances available on record, it comes out that there is incomplete medical evidence and the allegation of committing of the sexual intercourse with the victim is not fully proven."

With respect to commission of rape in 2017, the Court said that the no evidence was placed on record and not even date of the alleged incident was stated by the girl.

Reliance was placed on Rakesh Vs. State of Haryana, wherein the High Court had held that statutory presumption under Section 29 applies when a person is prosecuted for committing offence under Sections 5 & 9 of the POCSO Act and reverse burden is imposed upon the accused to prove the contrary. The Court also held that it does not mean that prosecution has no rule to establish the primary facts constituting the offence.

While setting aside the conviction, the Court found that, "the investigation has not been conducted properly and the Investigation Officer has failed to perform his duty of collecting the entire evidence." The court further directed that the accused be released forthwith and allowed the appeals.

Case Title: Virender v. State of Haryana and another appeal

Mr. R.N. Lohan , Advocate for the appellant (in CRA-D-7-2022).

Mr. Vivek Suri, Advocate for the appellant (in CRA-D-8-2022).

Mr. Apoorv Garg, Sr. DAG-cum Public Prosecutor, Haryana.

Citation: 2024 LiveLaw (PH) 427

ORDER