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Judgment
Heard Mr. T.J. Mahanta,, learned senior counsel assisted by Mr. L.R. Mazumder, learned counsel for the appellant. Also heard Mr. D.P. Goswami, learned Additional Public Prosecutor appearing for the State as well as Mr. A. Mena, learned Amicus Curiae appearing for the informant.
This appeal is directed against the judgment and order dated 30.09.2022 passed by the learned Additional Sessions Judge, Special Judge (POCSO) Cachar, Silchar in Special (POCSO) Case No.66/2019 thereby convicted the appellant under Sections 4 of POCSO Act and sentenced him to undergo RI for a period of 10 (ten) years and to pay fine of Rs.5000/- (Five thousand) only in default to undergo RI for another 2 (two) months and also convicted for the offence committed under Section 366 IPC and sentenced him to undergo RI for a period of 2 (two) years and to pay of Rs.2000/- only and I/D further to undergo RI for 1 month and sentence shall run concurrently.
The facts leading to the prosecution case in a nutshell are that the accused/appellant Saha Alom Laskar, who had developed love affair with the 14 year old minor daughter of the informant, by giving assurance to marry her, on several occasions had sexual intercourse with her and on 01.04.2019 at about 9 a.m., when the minor girl was proceeding to her school, on the way, on her reaching the road in front of the house of the accused, he (i,e the accused) by enticing her, took her to his house and thereafter leaving her in the house of his verandah, the accused went away. Hearing about the incident, the informant rescued her said minor daughter from the house of the accused and when the informant was taking back her victim daughter to her house, she met the uncle of the accused on the road who threatened the informant.
In this respect, the Informant lodged the Ejahar on that day itself i.e. 01.04.2019 with the O/C Kachudaram P.S. giving rise to Kachudaram PS Case No.59/2019 u/s 365/506 of IPC r/w Section 4 of the POCSO Act. On completion of investigation, the charge sheet was submitted against accused Saha Alom Laskar U/S 365 of IPC r/w Section 4 of the POCSO Act.
After furnishing copies to the accused/appellant as required u/s 207 Cr.P.C, vide order dated 06.12.2019 the then Learned Special Judge framed charges U/S 365 of IPC and U/S 4 of the POCSO Act against the accused/appellant. On being explained the accused/appellant pleaded not guilty and claimed to be tried. Thereafter, the case was transferred to Court for disposal. Subsequently, vide order dated 11.05.2022, the charge framed against the accused u/s 365 IPC was altered to one u/s 366 IPC and alternative charge u/s 376 IPC was also framed against the accused. The charges having been read over and explained, the accused person pleaded not guilty and claimed to be tried.
During the course of trial, Prosecution examined seven witnesses including the investigating police officer. Thereafter, the accused person was examined u/s 313 of Cr.P.C. and his defence statement was recorded. Plea of the defence was of total denial and alibi. The defence examined one witness to prove its case.
Upon conclusion of the trial, the accused appellant was found guilty on both counts and was convicted under Section 4 of the POCSO Act, as well as under Section 366 IPC and sentenced him as aforesaid.
Mr. Mahanta, learned senior counsel submits that this is a case where the victim was in love with the accused and had tried to enter the house of the accused forcefully, in order to marry the accused and it was the mother of the accused appellant, who informed the police to take her away from her house. Furthermore, the evidence of the victim is not trustworthy and here the prosecution case is also not supported by the medical evidence and as far as the age of the victim is concerned, prosecution failed to prove the same in terms of the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act (in short JJ Act) read with Section 34 of the POCSO Act, inasmuch as, although the victim was a school-going student, the I/O made no effort to collect any school certificate and neither did he obtain the birth certificate of the victim to establish her age, which is violative of the aforesaid provision of the JJ Act, which is to be applied while determining the age of a victim as well as held by the Hon’ble Apex Court.
Furthermore, although the prosecution relied on the medical evidence, the doctor who submitted the X-ray report was not examined to prove the age of the victim. Referring to the contradictions in the evidence of the victim, it is submittd that although she had complained about bleeding in her statement recorded under Section 164 Cr.P.C., the Medical Officer did not find any such bleeding, nor any evidence of recent sexual intercourse.
It is further submitted that the informant mother of the victim also never stated in the FIR about commission of rape upon the victim.
The learned Additional PP has submitted that the statements of the victim have been consistent throughout, except for some minor inconsistencies, which are only to be expected and there is no infirmity in the impugned judgment, and hence no interference is called for.
Mr. A. Mena, learned Amicus Curiae also submits similarly and that the defence has not been able to shake the evidence of the victim during cross-examination.
It is further submitted that the age of the victim as deposed to by the Medical Officer, has not been challenged as defence declined to cross-examine the said witness.
With regard to the absence of injury, it is submitted that penetration to the slightest extent is sufficient to constitute the offence and it is not necessary that in all cases, any injury is required to be proved. Furthermore, the DW 1, who is the mother of the victim, adduced evidence by exhibiting one Airplane ticket to show that the appellant had gone to Pune before the occurrence, but did not submit any return ticket to show that he was away from the place of occurrence during the relevant period and furthermore, in the absence of a boarding pass, mere exhibition of the Air ticket cannot be regarded as sufficient for the purpose of proving the plea of alibi, resorted to by the defense.
At this stage, the evidence of the case may be discussed.
Pw1/victim has said in her evidence that the informant is her mother and that the occurrence took place in the year 2019.
She has further deposed to the effect that on the date of occurrence while she was going to ID Roy and Ramdulal Roy Higher Secondary School, the accused pulled her hands forcibly from the road in front of his house and dragged her to his house, put off her clothes and raped her. She made hue and cry and at that time no other person was available in the house of the accused and hearing her hue and cry, the mother of the accused came and then the accused fled from the backside of the house. Thereafter, the mother of the accused tried to drive her out from his house but she refused due to the said act of the accused. Then the mother of the accused called police and then police brought her to her house and her mother lodged FIR against the accused. Pw1/victim has further said that at the time of occurrence, she was a student of Class-IX. Police sent her to SMCH, Silchar wherein she was medically examined and police also sent her to Court wherein her statement u/s 164 Cr.P.C. was recorded. She has proved Ext.1 as the statement wherein Ext.1(1) and Ext.1(2) are her signatures.
In her cross examination the Pw1 has said that she was going alone to school on that day and that only one girl of her area is a student of the said school but she does not belong to her class. The house of the accused is adjacent to the PWD road and the premises are open and there is no boundary around the premises and that there are other houses in the backside of the house of the accused and that there are other male and female members in those houses and that in the house of the accused, his sister and mother reside but none was available at the time of occurrence.
Pw1/victim has denied the suggestion put to her by the defence to the effect that the accused did not commit rape upon her and that she voluntarily entered into the house of the accused while the accused was not available in his house for which the mother and sister of the accused tried to drive her out and she refused to come out of their house for which they were compelled to take the help of police.
On perusal of the statement of the victim, recorded u/s 164 of Cr.P.C i,e Ext-1, it is seen that she stated therein that "since one year I have love affairs with the boy named Shah Alom Laskar of Kachudaram. On 1st April, 2019 when I was going to my school, the accused Shah Alam Laskar forcefully took me to his house. I raised hue and cry but none came to rescue me. He told me that he will marry me. Then he forcefully put off my clothes and touched my breasts and established sexual intercourse with me. As a result blood came out of my vagina. I somehow again put on my clothes. At that moment his mother and sister came and he fled away. His mother drove me out of their house. Then they called police and police took me to my house but my mother refused to take my custody. My mother then lodged the case. Now my mother is willing to take my custody, so I want to go with my mother.
Pw2 is the Informant and mother of the victim. Pw2 has said in her evidence to the effect that she lodged this case against accused Saha Alom Laskar and that the occurrence took place in the year 2019 in the month of April. On that day her victim daughter who was at that time a student of Class-IX went out of the house at 9 a.m. for attending school. She has further deposed that at about 2/3 p.m. police brought her victim daughter to her house and on being asked the victim reported her that while she was going to school, the accused dragged her to his house and committed rape upon her and thereafter keeping her at verandah of his house, the accused fled away from there. She lodged a written FIR against accused Saha Alom Laskar. She has proved Ext.2 as the FIR wherein Ext.2(1) is her signature. She has also deposed that police sent her victim daughter to SMCH, Silchar wherein she was medically examined and got her statement recorded by the Magistrate U/S 164 Cr.P.C. and that at the time of occurrence the age of her victim daughter was 14 years 8 months.
In her cross examination Pw2 has said that she does not remember as to who wrote the FIR but the same was written at the P.S. and that the house of the accused is at a distance of about 200/250 meters from their house and that there are houses in between their house and the house of the accused. She has further said in her cross examination that there are other houses in the backside of the house of the accused and that any noise can be heard from the road if made in the house of the accused.
Pw2/informant has denied the suggestion put to her by the defence to the effect that she did not state to police that at about 2 p.m. police came to their house along with her daughter and that her daughter told her that the accused had raped her. But it is seen that the defence has by cross examining the I.O Monir Uddin Laskar i,e Pw7,brought it out that actually the Informant did not state so in her previous statement given to the I.O.
Though in her cross examination, Pw2/Informant has also denied the suggestion put to her by the defence to the effect that she has not mentioned in the FIR that the accused raped her daughter, contents of the ejahar i,e Ext-2 make it clear that in the ejahar lodged by Pw2, it was not mentioned.
PW-3 is the paternal uncle of the victim girl. PW has said in his evidence about knowing the accused. He has further deposed to the effect that the occurrence took place about one and half years back (prior to the date of his evidence) at about 9.30 a.m. At the time of occurrence he was at his home and then hearing hulla he rushed to the house of the accused and saw the victim standing in the verandah of the house of the accused. Then on being asked, the victim told him that while she was going to her school the accused forcibly took her to his house. At the time of occurrence the victim was a student of Class-IX in Ramdulal Roy High School and her age was 14 years. Police recovered the victim girl from the house of accused and as per order of the Court she was given in zimma to her father. Pw3 has also said that the victim girl is daughter of his own younger brother. Police recorded the statement of Pw3.
In his cross examination the Pw3 has said that many other girl students from his village go to Ramdulal Roy High School crossing the house of the accused and that the father of the accused was a Govt. employee and that he used to live in Silchar along with the accused.
Pw4 is another paternal uncle of the victim. In his evidence Pw4 has said about knowing the accused. Pw4 has further deposed to the effect that on the date of occurrence after his returning home from his work in the evening, the mother of the victim told him that the accused had taken away her victim daughter while she was either going to school or coming to her home from N school and that then the mother of the victim girl lodged the FIR with Kachudaram Police Station against the accused. Later police recovered the victim girl and handed over to the Informant.
In his cross examination, the Pw4 has said that he returned home from his work at about 5.00 pm. and that the victim is his niece through his brother and that he along with the victim girl and the informant went to the Police Station. He has further said in his cross examination that other girls from his neighborhood used to go to school along with the victim girl. PW- 4 has conceded in his cross examination that he cannot say whether the accused took away the victim girl. Although in his cross examination PW- 4 has denied the suggestion put to him by the defence that he did not state before the police that accused Saha Alom took away the victim daughter of the informant while she was either going to school or coming to her home from the school, the I.O/Pw7 has confirmed in his cross examination that, actually Pw4 did not state so in his previous statement recorded u/s 161 of Cr.P.C.
Pw 5 is cousin brother of the father of the victim girl. Pw5 has said in his evidence about knowing the accused. Pw5 has further said in his evidence that the occurrence took place about two years back (from the date of his deposition) at about 9.00 AM. At the time of occurrence the victim girl was going to school and he found the victim girl along with others standing in the verandah of the house of the accused. After sometime police came therein and took her to her father's house and handed over her to her parents.
In his cross examination the Pw5 has said that about 5/6 other girls used to accompany the victim girl towards the school and that if any hue and cry or force is applied to any person many people may gather and that the verandah of the house of the accused is visible from the road as the house of the accused is adjacent to the PWD road and that mother of the accused called the police to send the victim from the house of the accused to her paternal house. Father of the victim is his(i.e Pw5) cousin brother.
PW 5 has denied the suggestion put to him by the defence to the effect that he did not see the victim girl in the verandah of the house of the accused.
PW-6 Dr. Orina Raha is the Medical Officer. She has said in her evidence that on 02.04.2019 when she was posted as GDMO of the Department of Forensic Medicine, SMCH, Silchar, on police requisition she examined the victim and that the victim gave the history that - "As per the survivor on 1.04.2019 around 9 a.m. in the morning on her way to school she was forcefully pulled by a boy name Shah Alom to his house, had forceful sexual intercourse with her and fled away keeping her on his verandah. Then the police brought her back home she took bath and changed her clothes."
PW 6 has further said that on the basis of physical (including dental) examination, laboratory and radiological investigation done on the victim, they are of the opinion that -
Her age was above 14 years and below 16 years.
No evidence of recent sexual intercourse detected.
No evidence of injury on body or genitals detected.
She has proved Ext.3 as the medical report wherein Ext.3(1) and 3(2) are her signatures. This witness was declined to be cross-examined by the defence.
PW-7 SI Monir Uddin Laskar is the Investigating Police officer. He has said in his evidence that on 01.04.2019 while he was posted at Kachudaram PS as O/C, on that day he received an ejahar and registered Kachudaram PS Case No.59/19 u/s 365/506 IPC read with Section 4 of the POCSO Act and he himself took up the investigation of the case. During the course of investigation he visited the place of occurrence, drew up the sketch map of the place of occurrence (under objection), recovered the victim girl from in front of the house of the accused at Dakhin Mohanpur Part-V. He produced the victim girl to Silchar Court wherein her statement was recorded by the Magistrate u/s 164 Cr.P.C. and as per order of the Court the victim girl was kept in Ujjala Home. The victim girl was also sent to SMCH, Silchar wherein she was medically examined. Pw7 has further said that he examined the available witnesses and recorded their statements and on completion of investigation he submitted charge sheet against accused U/S 365 of IPC read with Section 4 of the POCSO Act. He has proved Ext.4 as the charge sheet wherein Ext.4(1) is his signature.
Ext. 3 is the Sketch Map.
In his cross examination the Pw7 has said that the statement of the victim girl was not recorded by any female police officer and that he did not recover the victim girl from in front of the house of the accused at Dakhin Mohanpur Part-V, but she was produced before the P.S. by her parents and other relatives and that he has not mentioned the fact that the victim was produced by her parents or other relatives or the fact as to how he recovered the victim in the forwarding report while forwarding the victim to the Court for recording her statement and that he has not submitted any sketch map with the charge sheet. He has denied the defence suggestion that he never visited the place of occurrence as the Ext.3 was prepared and written by another person and that he prepared Ext.3 in connivance with the informant.
The plea of the defence as found from the cross examination of Pw1/victim as well as from the defence statement of the accused recorded u/s 313 of Cr.P.C is that at the time of occurrence he was not at home. In order to prove his said plea of alibi, the defence examined one witness.
DW-1 Tamija Khatun Laskar is the mother of the accused. She has said in her evidence about knowing the informant and the victim. Dw1 has further said in her evidence that on 01.04.2019 at about 9 AM, she was at her residence. At that time her daughter Pinki Begum Laskar was also present with her. On that day, her son Saha Alom Laskar was in Pune. He went to Pune on 27.02.2019. She has proved Exhibit-A as the ticket of INDIGO Airlines dated 27.02.2019. She has further said that on 01.04.2019 at about 9 AM the victim all of a sudden came to her house and on being asked she told her that she would marry her son Saha Alom Laskar. Then she became excited and called the neighboring people and also called her parents but they did not turn up. Her brother-in-law Ramij Uddin Laskar suggested her to inform the police and accordingly police was informed and police came and took the victim back to her residence. Dw1 has also said that she informed her son about lodging of the FIR by the mother of the victim and he came after about two and half months from the date of the occurrence and appeared before the Court. She has also contended that the allegations brought against her son are false as he was outside the State at the time of occurrence.
In her cross examination, the Dw1 has said that she has not submitted any documents to the Court regarding coming back of the accused to her house from Pune and that she does not know what is written in Exhibit-A. Dw1 has denied the suggestion put to her by the prosecution to the effect that accused Saha Alom Laskar abducted the victim girl and wrongfully confined her in her(i,e Dw1) house and also committed penetrative sexual assault on the person of the victim girl on the same date and that on 01.04.2019 the accused was in her house.
From the evidence discussed above, it would appear that the PW- 3, who is the paternal uncle of the victim girl, was the first person to whom the victim reported anything about the occurrence.
He deposed that hearing hullah, he rushed to the house of the accused and saw the victim standing in the veranda of the house of the accused and on being asked, the victim told him that while she was going to her school, the accused person forcibly took her to his house and that police recovered the victim girl from the house of the accused. Nowhere PW 3 states anything about the victim reporting to him about being subjected to rape or any sort of sexual assault.
Here regard must be had to the fact that PW3, as stated, is the close relative of the victim, being her paternal uncle, and not a stranger before whom the victim may be hesitant to confide or complain of such act.
Similarly, PW- 4 is another paternal uncle of the victim, who was not present at the place of occurrence at the relevant time, but deposed that the mother of the victim told him that the accused had taken away her victim daughter while she was either going to school or returning from it and thereafter, the mother of the victim lodged the FIR. Therefore, according to PW-4, even the mother of the victim did not report to him about any rape having been committed upon the victim.
Surprisingly enough, as if to compound the lacunae in the prosecution case, the informant/mother of the victim herself did not make a single mention about any act of rape or any other form of sexual assault having been committed upon her daughter in the FIR lodged by her, which fact is not disputed.
Therefore, the most critical component of the prosecution case, i.e., the factum of rape/penetrative sexual assault having been committed upon the victim by the accused appellant finds no place in the first statement of the informant in the form of the FIR.
Further to that, it was put to the PW- 2/informant that she did not state to the police that when the police brought her daughter to her, she stated that the accused had raped her, which suggestion was denied by PW- 2, but was confirmed by the I/O, i.e., PW 7. Therefore, even in her statement before the police, apparently she stated nothing about the commission of rape upon her daughter by the accused appellant.
Therefore, the aforesaid omission creates grave doubt on the truthfulness of the versions presented by the informant as well as by the victim before the Court. Further to that, it does not help the prosecution case that the medical evidence also does not corroborate the version of the victim.
In Amar Nath Jha v. Nand Kishore Singh, reported in (2018) 9 SCC 137, relied upon by the appellant, the Hon'ble Apex Court held that although the FIR need not be an encyclopedia of the crime, the absence of certain essential facts points towards the suspicion that the crime itself may be staged. Similarly, in B.N. John v. State of Uttar Pradesh & Anr., 2025 LiveLaw (SC) 4, the Hon'ble Apex Court held that the absence of mention of the alleged acts constituting the ingredients of the offence under Section 353 IPC renders the FIR legally untenable, insofar as the said offence is concerned.
As far as, the evidence of the victim herself is concerned, it does not escape notice that the victim had stated that at the time of occurrence, no other person than the accused appellant was present in his house, although he resided there along with his mother and his sister. But upon her raising hue and cry, the mother of the accused appellant miraculously appeared, seemingly out of nowhere. The probability therefore, is higher that the mother of the accused appellant was also present in the house, in which circumstance, regard being had to normal human behavior, it is improbable that the accused would have committed an act of forcible rape upon the victim. This, of course, is in addition to the fact that in her statement before the Magistrate, the victim had stated the sister of the accused appellant to have appeared along with her mother, upon hue and cry being raised by the victim.
It has also transpired from the evidence of most of the witnesses that it was the mother of the accused petitioner herself who called the police upon the refusal of the victim to leave the premises, which conduct also appears to be contrary to what any normal person would have done if his or her offspring would have committed such an sexual offence.
This brings us to the question of the presumption under Section 29/30 of the POCSO Act resorted to by the learned Trial Court.
In Deepak IN JC –vs- State Govt. Of NCT DELHI reported in 2026 INSC 1008, the Hon’ble Apex Court had the occasion to discuss the manner in which the presumption under Section 29/30 of the POCSO Act would be advanced and rebuted and held. Paragraphs 7.1, 7.1.2, 7.1.3, 7.1.4, 7.3, 7.3.1, 7.4, 7.5, 7.6, 7.7, 7.8.2, 7.8.4, 8, 9, 9.1 & 9.2 are quoted herein below:-
“7.1Section 29 of the POCSO Act raises a presumption as to certain offences against a person who is prosecuted for committing or abetting etc. the offences. It reads thus, “29. 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.”
7.1.2Section 29 operates to provide that where a person is prosecuted for committing any offence under Sections 3, 5, 7 and 9 of the Act and where the victim child is below the age of 16 years, the court shall presume that such person has committed the offence, unless the contrary is proved. Section 30 pre-supposes a culpable mental state mens rea on the part of the accused. At the same time, it provides that a defence is possible to be raised by the accused to prove the fact that he had no such mental state with respect to the act charged as an offence against him. The factum of culpable mental state can be said to be proved, as sub-section (2) mentions, only when the court believes it to accept beyond reasonable doubt and not on the preponderance of probability.
7.1.3The presumptive provisions of Sections 29 and 30 of the POCSO Act are a departure from the cardinal rule in criminal jurisprudence that the accused is presumed to be innocent till proved guilty. While a presumption of innocence of an accused runs through the jurisprudence of administration of justice in criminal cases, the legislature in the modern times has enacted in certain statutes, the provision which presumes, on part of the accused, about commission of offence. These presumptive provisions presuppose by creating a statutory presumption, the commission of act of offence and the existence of culpable mental state on part of the person accused of the offence under the statute concerned, until otherwise proved.
7.1.4The presumption that the accused is guilty until contrary is proved is described as rule of reverse burden, which at the threshold discards the theorem of presumption of innocence. The provisions regarding presumption of guilt are enacted having regard to the gravity of the offence provided under different statutes and because of its serious and adverse consequence on the society. The POCSO Act is one such statute which is enacted with the object that it is a law enacted to protect children from offences of sexual assault, sexual harassment and pornography conduct by the committers of such heinous crime.
7.3It has to be stated that presumptions of such kind as provided in Sections 29 and 30 of the POCSO Act are not absolute presumptions. The Bombay High Court in Navin Dhaniram Baraiye vs. State of Maharashtra, through P.S.O., P.S. Ajni, District Nagpur12 pertinently observed about the nature and operational ambit of Section 29 of the POCSO Act,
“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 operate.”
7.3.1In the same paragraph, the High Court proceeded to state,
“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.”
7.4The statutory presumptions cannot be read to mean that the prosecution version is liable to be treated as gospel truth in every case. It has to be additionally observed by this Court the presumptive provisions notwithstanding, the courts are not absolved from discharging their essential duty to analyse the evidence on record in light of the features emerging in a particular case. The court should not mechanically accept the ipse dixit of the prosecution riding on the provisions regarding presumption of guilt to give a stamp of approval to every prosecution even if they are absurd or improbable in its story. At the end of the trial, the accused should not stand at a discount or at disadvantage only for the reason that the particular statute under which he is tried for the offence contains presumptive provisions about the guilt of the accused.
7.5The reverse burden contemplated in presumptive provisions could be said to be an additional weapon in the armoury of prosecution. However, this arm could be thwarted by the accused by leading evidence to the contrary. Differently stated, the presumption of commission of offence or the presumption of culpability mental state are rebuttable presumptions. The truthfulness of the factum raised by way of statutory presumptions can be countered by the accused by leading evidence. Although the prosecution may have established the primary facts relating to commission of offence, once the accused discharges his burden of shifting onus to be able to show that the state of things are otherwise or that the accused raises a valid defence, the presumption of guilt and culpability would start disappearing.
7.6Again, the provision raising presumption of guilt against the accused cannot operate in any way to discount the norms of fair trial and the principles governing the fair trial realm. This Court in Naresh Kumar alias Nitu vs. State of Himachal Pradesh13, while speaking with reference to the similar provision under the NDPS Act inter alia observed that in the stringent nature of the provisions of the NDPS Act, the concept of reverse burden of proof, the presumption of culpability under Section 35 and the presumption against the accused under Section 54, any reliance on Section 114 of the Evidence Act could be applied, in any case, only at the risk of a fair trial to the accused, suggesting thereby that the operation of provisions of such nature cannot be permitted to discount the fundamental norms of the fair trial, which is the right of the accused under Article 21 of the Constitution.
7.7The provision regarding presumption of guilt or that the rule of reverse burden requiring the accused to prove his innocence does not change the rule of standard of proof as normally applied in the criminal cases. The principle is to be highlighted that even where there exists a presumptive provision with reverse burden of proof, the prosecution is obliged in law to prove the guilt against the accused beyond reasonable doubt. While the prosecution will have to establish the culpability ad guilt of the accused beyond reasonable doubt and that the accused cannot be held guilty on the preponderance of probability, when it comes to proving the innocence by the accused, the standard of proof would be the preponderance of probability. In other words, the accused would be able to counter the prosecution case by raising a defence and thereby to show himself innocent on preponderance of probability.
7.8.2In Naresh Kumar (supra) also, this Court underlined that the presumption against the accused about culpability does not dispense with the obligation on part of the prosecution to prove charge beyond all reasonable doubt. It was stated that the presumptive provision could not justify the conviction on the basis of preponderance of probability. This Court held that the reversal of acquittal of the appellant by the High Court was speculative by misapplying the presumptive provision about culpability.
7.8.4The accused facing trial under the POCSO Act on the presumptive provision of guilt operating against him may rebut the prosecution case by offering an explanation which might reasonably be true and which is consistent with his defence of innocence. It is not that the accused is not required to establish his plea of defence by leading proper evidence, but the degree and character of proof which the accused is expected to provide in substantiation of his plea, cannot be equated with the degree and extent of proof expected from the prosecution which will have to invariably prove its case against the accused beyond reasonable doubt.
8.The operation of the statutory presumptions would also not permit the departure from the well-recognized principle, which is the golden thread running through the web of criminal justice administration that if two views are possible on the evidence adduced in the case, one pointing towards guilt of the accused and the other towards innocence, the view which is favouring the accused should be adopted. This again reiteration in different way of the dictum that the guilt of the accused has to be proved beyond reasonable doubt and not on the basis of preponderance of probability.
9.In the case of conviction or acquittal of the accused facing trial for any criminal offence, what is necessarily involved is the issue of his personal liberty. When an issue concerning the liberty of an individual is involved to be dealt with in law, the court has to be extra careful and cautious. The court should always undertake objective assessment and appreciation of evidence. Therefore, in addressing the entitlement of the accused to the acquittal, the court should not overweigh itself with the provisions like that of Section 29 or Section 30 of the POCSO Act.
9.1Even as the statute concerned may be containing such presumptive presumption, the appreciation of evidence should be guided by all normal standards and yardsticks to be applied in law. The court is not expected to influence itself by the existence of presumptive provision so as to lean towards the prosecution while analysing and interpreting the evidence. The presumptive provision may have its play at the primary stage to have the effect of shifting the onus on the accused, however once the evidential emptiness is found in the prosecution case and the prosecution version lacks credibility or borders perversity, the presumption of guilt would no longer remain effective.
9.2The court should not therefore be overshadowed or inhibited by the provision of presumption of guilt and commission of offence by the accused and would weigh the evidence with usual principles. The accused should be given full room to prove to the contrary to displace the presumption and demolish the case of the prosecution.”
Reading paragraphs 7.5, 7.5.1 and 7.8.4 together and as a whole, what clearly emerges is that it is not mandatory for the accused to adduce defence evidence, when by way of cross-examination of the prosecution witnesses itself, he succeeds in rebutting the presumptions under Section 29/30 of the POCSO Act. Therefore, the Trial Courts cannot insist on the accused adducing defence evidence in every case by relying upon the decision of this High Court in Bhupen Kalita –vs- State of Assam, reported in 2020 (3) GLT 403, wherein, it was held:-
“(D)However, because of legal presumption against the accused, it may not suffice by merely trying to discredit the evidence of the prosecution through cross-examination, and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt."
The aforesaid view of this High Court apparently stands negated in view of what has been held in Deepak (supra) by the Apex Court.
From the above, I am of the view that on a preponderance of probabilities, the presumption under Section 29 of the POCSO Act stands rebutted.
The above being said, it is also not disputed that the Medical Officer had deposed that the age of the victim was between 16 to 18 years and it is settled law that a variation of two years has to be taken into account when the age of the victim is to be decided on the basis of an ossification test.
Therefore, adding two years to the outer range of 16 years mentioned by the M.O, the age of the girl would have to be regarded as 18, which should take the victim out of the ambit of the definition of ‘child’ under Section 2(d) of the POCSO Act and consequently out of the scope of the provisions of the POCSO Act and therefore also the presumption under section 29 of the POCSO Act would not be available to the Court.
In view of what has been discussed above, I am of the view that the impugned judgment and sentence cannot be sustained and the same is accordingly set aside.
The appeal stands allowed. Appellant be set at liberty forthwith.
Send back the TCR.