The Gauhati High Court recently comprising of a bench of Justices Suman Shyam & Mir Alfaz Ali observed that the prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond a reasonable doubt, but based on a preponderance of probability. If he is not able to prove the foundational facts of the offence based on a preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused. (Manirul Islam @ Manirul Zaman Vs the State of Assam And Anr.)
Facts of the Case
The uncle of the victim girl had lodged an ejahar, informing that the accused had forcibly taken away his niece to the house and committed rape on her against her will. In the ejahar, it was mentioned that the delay in lodging the FIR was because of the settlement arrived at in the social meeting. Accordingly, Case was registered under Section 120(B)/34 of the IPC read with Section 4 of the POCSO Act.
The Learned Special Judge had held that from the Birth Certificate of the victim girl adduced, it was proved that on the date of the occurrence, the victim was aged 15 years 1 month and 15 days. It was also observed that the evidence adduced by the prosecutrix was trustworthy and therefore, drawing presumption under Section 29 and 30 of the POCSO the learned Special Judge had found the accused guilty under Section 4 of the POCSO. Therefore the present appeal.
Contention of the Parties
The Learned Counsel for the appellant by referring to the materials available on record has argued that there was more than 46 days delay in lodging the ejahar and the victim was also examined nearly 60 days after the alleged occurrence. But there is no plausible explanation for the delay. He urged that delay in lodging of FIR, in this case, would have fatal consequences on the prosecution case.
The learned counsel on the corollary submitted that the victim was a minor girl aged below 16 years on the date of the occurrence and as per the medical evidence, her hymen was also found to be torn. By referring to Section 29 and 30 he argued that in a case where the accused is prosecuted for an offence committed under section 3,5,7 and 9 of the POCSO Act, the court is empowered to draw the presumption of guilt of the accused.
Courts Observation & Judgment
The Court remarked that POCSO was enacted by the Parliament with the object to protect children from offences of sexual assault, sexual harassment and pornography. The Act, which came into force on being published in the Gazette of India, providing for setting up Special Courts for trial of offences under the Act. Although section 376 of IPC contains penal provision to award punishment for rape, yet, the Legislative intent behind bringing such a Special Statute appears to be to tackle the growing cases of sexual harassment on children. In order to provide better teeth to the prosecution, sections 29 and 30 have been inserted in the POCSO empowering the court to draw presumption of guilt against the accused. However, insertion of sections 29 & 30 has also raised questions as to the parameters following which, power under the said provisions is to be exercised by the Special Court to draw presumption of guilt.
The Court referred to the case of Sohid Hossain Biswas Vs. State of West Bengal [CRA No 736 of 2016] where the Calcutta High Court held that establishing the foundational facts by leading evidence by the prosecution is an essential prerequisite before the statutory presumption under Section 29 of the POCSO Act is triggered so as to shift the onus on the accused to prove the contrary.
The Court further relied on the case of Navin Dhaniram Baraiye Vs. the State of Maharashtra (Crl. Appeal No. 406/2017) wherein the Court observed as follows :- “A perusal of the above quoted provision does show that it is for the accused to prove the contrary and in case he fails to do so, the presumption would operate against him leading to his conviction under the provisions of the POCSO Act. It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operation. Otherwise, all that the prosecution would be required to do is to file a charge sheet against the accused under the provisions of the said Act and then claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO act cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.”
The Court after referring to a number of judgments observed “From a minute examination of the ratio laid down in the aforesaid decisions rendered by the different High Courts, we are of the view that the decisions rendered in case of Sohid Hossain Biswas(supra); Navin Dhaniram Baraiya(supra) ; Dharmender Singh @ Saheb vs. The State (Govt. of NCT, Delhi) (Bail Application 1559/2020) and Bhupen Kalita vs. State of Assam 2020 (3) GLT 403 on the issue of applicability of sections 29 and 30 of POCSO, is based on the correct proposition of law. In all these decision, the Courts have expressed the opinion that reverse burden on the accused under sections 29 & 30 of POCSO would operate during trial and that too, after the prosecution establishes the foundational facts.
Section 31 of the POCSO provides that the Code of Criminal Procedure, 1973, [Cr.P.C] shall apply to a proceeding before the Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be the Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor. As per section 225 of Cr.P.C trial is to be conducted by Public Prosecutor. Section 226 of Cr.P.C provides that the prosecutor is to open the case by describing the charge brought against the accused and by stating what evidence he proposes to prove the guilt of the accused. Therefore, it is axiomatic that even in a case coming under the POCSO, formal charge has to be framed and the prosecution would be required to lead evidence to prove the charge.”
The Court noted that from the above, it becomes apparent that mere insertion of sections 29 and 30(2) in the POCSO does not altogether relieve the prosecution of the burden of proof contemplated under sections 101 and 102 of the Evidence Act but merely lessen the burden on the prosecution by shifting the onus upon the accused . However, such reverse onus would shift upon the accused only when the prosecution succeeds in prima facie establishing the charge by adhering to the standard of proof of preponderance of probability. It is only then, the accused would have to displace the presumption of guilt. What therefore, follows is that conviction in a proceeding initiated under the POCSO cannot be based solely on presumption of guilt of the accused under sections 29 &30 of the Act. For the above reasons, we find ourselves in agreement with the guiding principles laid down in paragraph 71 of Bhupen Kalita (supra) formulating the parameters to be satisfied for drawing presumption of guilt by the Court under sections 29 and 30(2) of POCSO.
Coming to the facts of this case the Court opinend, “that the prosecution has failed to establish the foundational facts. The testimony of the prosecutrix is also found to be full of contradictions and hence, unreliable. From the impugned judgement and order, we find that the conviction of the accused on the basis of presumption drawn under sections 29 & 30(2) of the POCSO. Therefore, we are of the view that in the absence of cogent evidence brought on record to prima facie establish the foundational facts, conviction of the accused cannot be based solely on presumption of guilt, premised on the precincts of the doctrine of reverse burden.”
We hold that the impugned judgement and order passed by the learned Special Judge, Barpeta in Special POCSO Case No. 72/2018 is unsustainable in law. The same is accordingly set aside, the Court said.
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