The High Court of Tripura recently comprising of a bench of Chief Justice Akil Kureshi and Honourable Justice Arindam Lodh setting aside the trial court's order acquitted a rape accused and remarked Establishment of fundamental facts by the prosecution acts as a safety guard against misapplication of statutory presumption since prosecution has to establish a prima facie case beyond a reasonable doubt. Only after this, the accused will be under obligation to rebut the presumption that arises, by adducing evidence with a standard of proof of preponderance of probability. (Sri Lalmalsom Kaipeng V. The State Of Tripura)
Facts of the case
A complaint against the accused Lalmalsom Kaipeng was filed by Sri Ramlian Malsom whose younger sister’s daughter, aged 8 years, was taken to a nearby jungle and was raped. His sister, Daisingh Kaipeng, came to know about this incident through her daughter and confronted him about it but due to social shame they did not divulge the incident soon after the incident.
Later on the basis of an ejahar a case was lodged under Section 376(2)(i)/506 of IPC and Section 6 of the POCSO Act while the accused agreed to a trial and pleaded non-guilty.
The learned Special Judge, Gomati Judicial District, Udaipur convicted and sentenced the appellant for 10 years rigorous imprisonment for the offence punishable under Section 6 of Protection of Children from Sexual Offences Act. Hence the present appeal.
Contention of the parties
Mr. S. Bhattacharjee, learned counsel appearing for the convict-appellant has submitted that the prosecution has miserably failed to establish the charges framed against the appellant. There are substantial improvements and exaggerations in the deposition of prosecution witnesses. Further, according to learned counsel for the appellant, the ocular versions of the prosecution witnesses, particularly, the victim was not supported by the medical evidence. Learned counsel for the appellant has prayed for acquittal of the appellant.
Mr. S. Debnath, learned Additional Public Prosecutor contended that there was no room to suspect the prosecution case. The prosecution witnesses had been able to prove the facts and circumstances that the victim was taken to a forest (jungle) by the appellant where he committed rape.
Learned Additional PP has further submitted that the Doctor who examined the victim after the incident deposed that the victim was suffering from acute pain in urinating which findings clearly established the prosecution case that the victim was raped by the appellant and none else.
Court's Observation and judgment
The court noted that “the maternal uncle admitted that there was a dispute regarding boundary of the houses of the victim and the appellant and the victim’s mother demanded a pig for settlement.” Additionally, the court observed that “the victim and her mother are categoric in their statements that after intercourse the victim sustained injuries in her private parts that caused bleeding.” However, “in regard to the fact of injuries at her private parts, some kinds of the mark of injuries in the nature of swelling, red mark could be detected by the Doctor. But the medical report clearly reveals that there was no mark of injury not only in any of her private parts as well as nowhere of her person.”
Thus, the court stated, “In view of the statements coupled with the medical evidence, we find various inconsistencies which appear to be so irreconcilable, are sufficient to suspect the very genesis of prosecution case. Even the prosecution has failed to establish the foundational facts relating to rape and the doctrine of reverse burden can be garnered from the prosecution witnesses.”
Thus, the court stated that “presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations.” Adding to this the HC also said that, “limited presumption does not upset the basic features of criminal law. Tendering of the oral evidence by accused is not mandatory or essential.”
Since the prosecution failed to establish foundational facts the Court held that, “The appellant is entitled to benefit of doubt. Accordingly, Lalmalsom Kaipeng is acquitted of the charges leveled against him on the benefit of the doubt and set at liberty.”
Hence, the appeal was allowed and disposed of by the High Court.
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