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. The judgment was passed by The High of Court Gauhati in the case of Manirul Islam @ Manirul Zaman Vs the State of Assam And Anr. [Crl.A./327/2019] by Division Bench consisting of Hon’ble Shri Justice Suman Shyam & Mir Alfaz Ali.
The facts of the case are that 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.
The Learned Counsel for the appellant 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. Urging 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.
The court relying on the apex court judgment Noor Aga Vs State of Punjab, wherein, it was held that “if the prosecution 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.”
The court opined 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 based on 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, the conviction of the accused cannot be based solely on presumption of guilt, premised on the precincts of the doctrine of reverse burden.”