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Sections 29 and 30 of the POCSO Act do not absolve the prosecution of its duty to establish the foundational facts: High Court of Tripura

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. This auspicious judgment was passed by the High Court of Tripura in the matter of SRI LALMALSOM KAIPENG V. THE STATE OF TRIPURA [CRIMINAL APPEAL (J) 34 OF 2019] by Honourable Chief Justice Akil Kureshi and Honourable Justice Arindam Lodh.

This appeal was directed against the judgment and order of conviction and sentence passed by the learned Special Judge, Gomati Judicial District, Udaipur whereunder the appellant was convicted under Section 6 of Protection of Children from Sexual Offences Act and was sentenced to rigorous imprisonment for 10 years.

The facts of the case are that the 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 prosecution contended that there was no room for a suspect since the prosecution succeeded in establishing the foundational facts in the instant case and also corroborated medical evidence since the findings of the examining doctor clearly established the prosecution case. Whereas upon further examination of the victim’s statement she confessed that her mother had specifically instructed her to confess some parts of it. Additionally, the doctor in her final opinion opined that there was no sign of recent intercourse, but hymen was ruptured (15days or a month old) and there were abdominal pain and urinary problem.

In this case, 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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