Lacunae In Prosecution Case Due To Patent Contradictions Cannot Be Cured By Resorting To Statutory Presumption U/S 29 POCSO Act: Calcutta HC

The Calcutta High Court on Wednesday observed that lacunae in the prosecution case due to patent contradictions or inherent improbabilities cannot be cured by resorting to statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 

A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, 

"Glaring lacunae in the prosecution case undermines the credibility of the factual foundations which require to be prima facie established to attract the statutory presumption. When the primary facts relating to time, place and circumstances constituting the offence are not prima facie established due to patent contradictions or inherent improbabilities, such lacuane cannot be cured by resorting to statutory presumptions in law"

The Court further observed that in the instant case ingredients of the offence of aggravated penetrative sexual assault under Section 6 of the POCSO Act has not been established since the evidence of the minor suffers from patent contradictions with regards to her earlier statement to the magistrate vis-a-vis the time and place of occurrence as well as other inherent weaknesses.

Accordingly, the Court acquitted the appellant by observing, 

"In order to attract the statutory presumption under Section 29 of the POCSO Act the factual foundations with regard to the ingredients of the offence under Section 6 of the said Act require to be established in the first place..in the light of the contradictory and inconsistent versions with regard to the allegation of rape levelled against the appellant, the factual foundations of the prosecution case has not been laid on the basis of preponderance of probabilities so as to attract the statutory presumption and the appellant is therefore entitled to an order of acquittal."

Background 

The instant appeal had been filed against the order of a Sessions Court for convicting the appellant for commission of offence punishable under Section 376(2)(i)(n) of the Indian Penal Code and under Section 6 of the POCSO Act. In the instant case, the appellant was the private tutor of the minor victim girl who was a student of class IX and aged about 14 years. 

It was alleged that on August 8, 2017, the appellant had come to the residence of the victim girl and had raped the minor victim. Subsequently, the victim girl started behaving strangely and upon persuasion on September 14, 2017 the victim girl disclosed the incident to her mother. 

Thereafter, the mother of the victim girl lodged a police complaint dated September 14, 2017 against the appellant. In the course of the investigation statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure. She was also medically examined.

Subsequently, the appellant was arrested the charge sheet was filed. The defence of the appellant was one of innocence and false implication.

Observations 

The Court at the outset acknowledged that ordinarily in a case involving penetrative sexual assault on a minor victim, sufficient latitude is to be given in the assessment of the evidence of such a victim. However, it was noted that in the present case, there exists sufficient inconsistency between the statement of the minor victim before the Magistrate under Section 164 CrPC and that of her mother. 

In this regard, the Court observed, 

"Both in the first information report as well as in Court, an onerous duty is cast on the Court to evaluate the intrinsic value of her evidence in the backdrop of such contradictions and/or inconsistencies before recording a finding of guilt against the appellant."

The Court further noted that the minor victim had deposed that the alleged incident had occurred in the afternoon around 1.30 P.M. in the house of the appellant whereas before the magistrate she had claimed that she had been raped in her own house at 8.30 P.M. Therefore, there is a clear departure with regard to time and place when the alleged rape occurred on August 8, 2017, the Court stated further. 

"Place, time and circumstance under which the offence is committed are the essential parameters which are required to be established in order to prove the prosecution case. In the instant case, there are inherent contradictions in the version of the victim with regard to the time and place where the alleged rape occurred. Moreover, her deposition in court with regard to rape in the afternoon in the house of the appellant does not find support either from her earlier statement before the Magistrate under section 164 Cr.P.C or in the narration of the incident in the FIR or deposition of her mother P.W.1 in court", the Court underscored further. 

The Court further opined that even if one ignores the contradictions between the deposition of the victim and that of her mother, it is difficult to rely on her version with regard to the alleged rape on August 8, 2017 as it is not only at variance with her statement before the Magistrate under section 164 Cr.P.C. but is highly unlikely in the attending facts and circumstance of the case.

"Even after the incident she went to the house of the appellant without informing her mother. This conduct on her part is unnatural as a girl who has been subjected to forcible rape would be loathe to visit the house of the perpetrator", the Court stated further. 

It was also noted that nothing has been placed on record on behalf of the prosecution to show that the victim was a minor at the time of occurrence. It was stated that the only piece of evidence which is relied upon by the prosecution with regard to age of the victim is that she is a student. However, it was observed that neither birth certificate nor the school records endorsing the age of the victim has been proved in the present case. No ossification test was also conducted with regard to the age of the victim in order to establish that she is a minor, it was noted further. 

Opining that the statutory presumption under Section 29 of the POCSO Act would not apply in the instant case due to the inherent weakness and patent contradictions in the prosecution case, the Court set aside the order of conviction and ordered for the release of the appellant from custody. 

Case Title: Ganesh Orang v. State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 33

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