Presumption under S. 29 of POCSO Act does not absolve Prosecution of its responsibility to establish primary facts, Calcutta HC

The Calcutta High Court has ruled that the statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) does not absolve the Prosecution of its responsibility of establishing and/or probablising primary facts constituting the offence..A proper interpretation of the said provision is that in a case where the person is prosecuted under Sections 5 and 9 of the Act, the prosecution is absolved of its responsibility of proving its case beyond reasonable doubt. However, it is required to lead evidence to establish the ingredients of the offence on a preponderance of probability, a Bench of Justices Joymalya Bagchi and Abhijit Gangopadhyay held..The judgment was rendered in an appeal against a verdict of the trial court which had convicted the appellant under Section 5(n) of the POCSO Act for penetrative sexual assault and sentenced him to life imprisonment..Facts.The prosecution case was that the appellant had allegedly outraged the modesty of his 13-year-old step-daughter at his residence firstly on March 24, 2016. Subsequently, on the night of April 14, 2016, the appellant had allegedly raped her in a roadside jungle near his house..With regard to the incident of outraging the modesty on March 24, charges were framed under Section 354 IPC and under Sections 9/10 and of the POCSO Act..With regard to the incident of rape/ penetrative sexual assault, charges were framed under Section 376 of IPC and Sections 5/6 of POCSO Act..After considering the evidence, the trial court convicted the appellant for the offence punishable under Section 5 (n) of the POCSO Act and sentenced him to rigorous imprisonment for life..The trial court, however, did not record any verdict with regard to the charges under Sections 9 and 10 of the POCSO Act and under Section 354 of Indian Penal Code which relates to outraging of modesty of the victim on March 24. The reasoning given by the trial court was that the appellant had been found guilty of the graver charge of penetrative sexual assault on April 14..High Court judgment.The High Court after examining the testimonies of various witnesses noted that the prosecution case was founded on two incidents..On March 24, 2016 i.e. the day of Holi it was alleged that the appellant had made the prosecutrix lie down on the bed on the excuse of giving a massage. Thereafter, he had attempted to violate the victim after taking off his trousers. Mother of the victim had gone to the market at the time of the occurrence. Due to trauma, the victim ran to her maternal uncle’s home and took refuge there. She narrated the incident to her mother and refused to return to the residence of the appellant, it was alleged..However, the Court noted that the said incident as narrated by the prosecutrix and her mother was not corroborated by the maternal uncle in whose house the victim had sought refuge. Counsel for the State strenuously argued that it was possible that the victim, out of shame, had not narrated the incident to her maternal uncle..The Court, however, rebutted the said contention stating that such a version could have been accepted had not the victim taken refuge at the residence of the maternal uncle after the incident in spite of the request of her mother to return to the residence of the appellant and remained there..Under such circumstances, it is difficult to believe that her maternal uncle would be completely unaware of the incident of attempted rape as alleged by the prosecution, the Court said..“Lack of corroboration from the maternal uncle (PW 3) with regard to the incident of attempted rape on the victim renders the same improbable and highly unreliable”, the Court said..The Court also noted that the victim, in fact, seemed to have been ordinarily residing at the residence of the maternal uncle at the time of the alleged rape on April 14..This fact was fortified from the conduct of the prosecution witnesses as emanating from their versions during the trial, the Court observed..Although the incident of rape allegedly occurred on the night of April 14, 2016, the victim did not meet her mother and narrate the incident to her till the evening of April 17..Her mother, in the cross-examination, admitted that her daughter was at her maternal home on April 18 and came to her residence at 9.00 pm. Moreover, it appeared from the statement of the victim recorded under Section 164 CrPC that she had gone to school from her maternal uncle’s house on the date of the alleged incident on April 14..All these showed that at the time the incident of rape and thereafter the victim was residing at her maternal uncle’s home till the FIR was registered on April 18, 2016..The prosecution case was that the prosecutrix had been attempted to be violated by her step-father on March 24 and had, therefore, taken refuge at her maternal uncle’s house because of such predatory conduct. The version of the prosecution was that the step-father had accompanied the prosecutrix to the Basanti Mela on the day of the alleged rape..However, the Court doubted the veracity of the same stating how the stepfather could have had access to the prosecutrix if she was at her maternal uncle’s house. Further, the Court also asked why the prosecutrix chose her step-father to accompany her for the Basanti Mela on April 14, just three weeks after he attempted to molest the prosecutrix..“It is the prosecution case that the victim had been attempted to be violated by her step-father on 24th March, 2016 and had taken refuge at her maternal uncle’s home because of such predatory conduct. Under such circumstances, is it plausible that the victim would seek the sole company of her step-father, the predator himself,to accompany her to the Basanti Mela within three weeks of incident i.e. 14th April, 2016?. I find no explanation forthcoming from the facts of the case which would justify such conduct on the part of the victim so as to give credence to the possibility of exclusive access of the appellant to the victim in the night of rape on 18th April, 2016.”.The aforesaid improbability in the prosecution case is rendered more acute by the absence of any independent evidence with regard to the presence of the appellant and the victim together at the Basanti Mela, the Court held..Presumption under Section 29 of POCSO Act.The Court then proceeded to deal with the presumption against the accused engrafted in Section 29 of the POCSO Act..Section 29 reads:.“Presumption as to certain offences. – Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and section 9 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”..The statutory presumption applies when a person is prosecuted for committing offence under Sections 5 and 9 of the Act and a reverse burden is imposed on the accused to prove to the contrary..However, the High Court held that the word “is prosecuted” in the aforesaid provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence..If that were so, then the prosecution would be absolved of the responsibility of leading any evidence whatsoever and the Court would be required to call upon the accused to disprove a case without the prosecution laying the firm contours of the case by leading reliable and admissible evidence. Such an interpretation, the Court held, not only leads to absurdity but renders Section 29 constitutionally suspect..So what exactly does Section 29 entail? The Court proceeds to answer the same..A proper interpretation of the said provision is that in a case where the person is prosecuted under Sections 5 and 9 of the Act, the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. Upon laying the foundation of its case by leading cogent and reliable evidence (which does not fall foul of patent absurdities or inherent probabilities), the onus shifts upon the accused to prove to the contrary..In the present case, the Court concluded that the evidence led by the prosecution to establish the primary facts suffer from inherent contradictions and patent improbabilities..One part of the prosecution case improbabilises the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses..Hence, the Court ruled that it does not call for invocation of the aforesaid statutory presumption so as to convict the appellant on the charges levelled against him..It, therefore, allowed the appeal and set aside the conviction of the appellant under section 5(n) read with section 6 of the POCSO Act..[Read Judgment].Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.