Conviction Of Accused Only On The Basis Of Presumption Under POCSO Act Would Offend Art. 20(3), 21 Of The Constitution: Tripura High Court

The Tripura High Court on Thursday held that the conviction of an accused only on the basis of presumption under sec. 29 and 30 of the POCSO Act would offend Art. 20(3) [No person accused of any offence shall be compelled to be a witness against himself] and Art. 21 [Right to Life] of the Constitution of India.

Noting that such presumption would be lead up to the prosecution commencing the trial with "an added advantage", a Division Bench comprising of Chief Justice Akil Kureshi and Justice Arindam Lodh observed thus:

"Upon meticulous reading of Section 29 and 30 of the POCSO Act, according to us, prosecution will commence the trial with an additional advantage that there will be presumption of guilt against the accused person, but, in our considered view, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. Perhaps, it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act."

The Court also went ahead to observe that such convictions forming basis only on the basis of presumption was not the objective of the legislature in incorporating the said provisions under the Act and that the presumption of innocence is a human right and cannot per se be equated with the fundamental right under Article 21 of the Constitution of India.

The factual matrix of the case dates back to the year 2016 where an FIR was registered under sec. 376 (2)(i)(n) and 506 of IPC and Section 4 of POCSO Act for committing sexual intercourse with a 12 year old girl. Thereafter a Special POCSO Judge convicted the appellant accused vide order dated 21st December 2017 and sentenced him to rigorous life imprisonment for offences punishable under sec. 6 of the POCSO Act.

Observations of the High Court

Conviction Only on Basis of Presumption under POCSO Act Would Offend Art. 20(3) and 21

The Court observed that under the mandate of sec. 29 of the POCSO Act, the Special Court shall presume that the person has committee, abetted or attempted to commit the offence unless the contrary is proved. Moreover, the Court also went ahead to note that the exception under sec. 30 of the Act states that the mental state include intention, motive, knowledge, belief, reason to belief etc.

"Upon meticulous reading of Section 29 and 30 of the POCSO Act, according to us, prosecution will commence the trial with an additional advantage that there will be presumption of guilt against the accused person, but, in our considered view, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. Perhaps, it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act." The Court observed.

While observing that the prosecution will commence the trial with "an added advantage of presumption", the Court also held that the prosecution is legally bound to establish foundational facts which sets the prosecution case. According to the Court, if the fundamental facts of the case are duly laid by the prosecution, it is then the duty of the accused to rebut it by way of eliciting patent absurdities, pointing out contradictions in oral testimonies of witnesses and discrediting witnesses by effective cross examination.

"Though, it may appear that in the light of presumptions, the burden of proof oscillate between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case." the Court observed.

Observing that conviction of accused only on the basis of presumption under sec. 29 and 30 of the Act would violate Art. 20(3) and 21 of the Constitution, the Court also observed that propounding so was "not the objective of the legislature". The Court observed thus:

"Presumption of innocence is a human right and cannot per se be equated with the fundamental right under Article 21 of the Constitution of India. The Supreme Court in various decisions has held that, provisions imposing reverse burden must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the Statute."

Presumption of Culpable Mental State under sec. 30 not applicable under for Offences under sec. 4,8 and 10

At this juncture, the Court observed that such an exception under sec. 30 is not available in offences punishable under sec. 4 (Punishment for Penetrative sexual assault), 8 (Punishment for Sexual Assault) and 10 (Punishment for Aggravated Sexual Assault) of the Act because when physical facts with regards to the charges will be proved, there will be no scope for the accused to take defences of intention and knowledge etc. However, the Court clarified that such scope may be there for the accused under sec. 12 (Punishment for Sexual Harassment) and 15 (Punishment for storage of pornographic material involving child) of the Act.

In view of this, the Court, after looking at the statements of prosecution witnesses in the case, concluded that the prosecution was able to prove the age of the victim as being the minor beyond all reasonable doubt. Moreover, the Court also agreed with the findings of the Special POCSO judge convicting the appellant.

However, the High Court distinguished with the Special POCSO Judge on the aspect of sentencing after observing that the case did not warrant the award of maximum punishment.

"The accused-convict has of course committed a serious offence and which must meet with punishment, which is commensurate with the nature of offence committed by him. The sentence in facts of the case is reduced to a period of 12 years which the convict shall serve without remissions. The sentence part of the judgment of the Special Court is modified to this extent." The Court held.

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