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Presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts: High Court of Tripura

It may appear that in the light of presumptions, the burden of proof oscillates between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case. To that extent, the presumptions and the duty to rebut presumptions are co-extensive. This auspicious judgment was passed by the High Court of Tripura in the matter of SRI JOUBANSEN TRIPURA V. THE STATE OF TRIPURA [CRIMINAL APPEAL (J) NO. 30 of 2018] by Honourable Chief Justice Akil Kureshi and Honourable Justice Arindam Lodh.

This appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 whereby the judgment of sentence and order of conviction passed by the learned Special Judge, South Tripura, Belonia for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 is challenged. 

The victim’s daughter used to reside with the convicted father whereas the mother lived separately. Joubansen started committing sexual intercourse with victim’s daughter and it continued for about three months after which she told her mother who registered a case under Section 376(2) and 506 of Indian Penal Code and Section 4 of POCSO Act.

The convict challenged his sentence and contended that the prosecution case was doubtful since the complaint was lodged with the intention to malign his image and the evidence regarding material objects was not brought to his notice, thus, denying him a reasonable opportunity to explain the circumstances arising out of those material objects.

In order to ascertain the sustainability of the judgment and order of conviction and sentence passed, the HC perused the evidence and materials brought on record and recorded that the victim was medically examined and during her cross-examination denied the suggestions put forth by the defence that the appellant did not commit any sexual intercourse with her. The defence failed to shake the mother’s evidence which she stated in her examination-in-chief also. Dr. Achintya Pal, the medical officer opined that there was evidence of vaginal penetration hence recent sexual intercourse could not be ruled out.

Thus, the Court stated, “Upon meticulous reading of Section 29 and 30 of the POCSO Act, according to us, the prosecution will commence the trial with an additional advantage that there will be a presumption of guilt against the accused person, but, in our considered view, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. Perhaps, it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act.”

The Court also added, “the prosecution will commence trial with an additional advantage of presumption against the accused but, prosecution is legally bound to establish foundational facts which set the prosecution case in motion. Then, it will be the obligation of the accused to prove his innocence but the standard of proof again will be on the basis of preponderance of probabilities.”

The Court hence observed that “It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of the prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused.” Additionally, the court acknowledged that, “foundational facts which the prosecution has been able to establish and the appellant failed to controvert these established facts.”

Thus, the Court referred to the Constitution Bench judgment of Supreme Court in case of Union of India V. Sriharan (2016) 7 SCC 1 and held that “The accused-convict has, of course, committed a serious offence and which must meet with punishment, which is commensurate with the nature of offence committed by him.” Hence, the Court reduced the sentence to a period of 12 years which the convict will serve without remissions.

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