Under which circumstances the court can not convict accused based on presumption under Section 29 of POCSO Act?

 Similar question was posed before Learned Single Judge of this Court in case of Ramprasad v/s State of Maharashtra MANU/MH/1943/2018. Learned Single Judge was dealing with an appeal filed by the convicted accused. While interpreting the nature of presumption under Section 29 of the said Act, it is observed :--

" Thus the presumption that operates under Section 29 of the Protection of Children from Sexual Offences Act is not absolute and it is triggered only when the prosecution is able to prove the foundational facts in the first place. The evidence placed on record by the prosecution is to be examined to first come to the conclusion that the foundational facts of the prosecution case have been established " (para 29).{Para 85}

86. On facts it was observed :--

" In fact for the presumption to operate, as observed earlier, it is necessary that the foundational facts are established by the prosecution, which in the present case, does not appear to have been done by the prosecution " (para 27)

• Conclusion

88. In nutshell, the trial court simply cannot be convict the accused on the basis of the presumption. Because the Court cannot start with only on the basis of the presumption. However presumption will come into picture only when foundational facts are established. That is to say, age of the victim, either of the acts prescribed under Sections 3, 5, 7 and 9 of the POCSO Act are committed. One may not find such wordings in the section itself. But the Constitutional Courts have interpreted similar provisions relating 'presumptions' en-grafted in various Acts. This interpretation of the provisions of relevant Acts is arrived at after considering those provisions of Acts on one hand and presumption of innocence on the other hand. It is interpreted presumption of innocence is human right though not a fundamental right.

89. In this case, foundational facts are not proved. I have already observed the evidence on the basis of statement under Section 164 of the Code can not be considered. So also on the basis of admitted medical case papers, we cannot draw an inference about involvement of the culprit/accused. Hence trial court was wrong in taking recourse to the presumption under Section 29 of the Protection of Children from Sexual Offences Act.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

Read full Judgment here: Click here.

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Whether it is mandatory to determine age of victim in the Pocso Act at the stage of hearing on bail application?

 93. In wake of the preceding narrative, the manner of

consideration of age of a victim in a bail application under the

POCSO Act shall be guided as follows:

I. The procedure for determination of a victim’s age

provided in Section 94 of the JJ Act, 2015 read with JJ

Rules, 2016 shall not apply to bail applications, though the

documents therein are liable to be considered. Age of

victim as per procedure prescribed in Section 94 of the JJ

Act, 2015 is determined conclusively only in the trial.

II. The line of enquiry and relevant factors to assess the age

of the victim in a bail application under the POCSO Act

offences are these. The consideration of the age related

documents mentioned in Section 94 of the JJ Act, 2015 i.e.

school certificate (including matriculation), date of birth

certificate issued by a local body, and medical report for

age determination as produced by the prosecution is a good

start point in the process.

III. The accused has a right to assail the veracity of the age

of the victim as stated in the prosecution case.

IV. The court while deciding the said bail application is

obligated to independently:

A. Examine the challenge laid to the victim’s age by

the accused applicant.

B. Evaluate credible doubts about the age of the

victim.

V. The assessment of age in a bail order is of a tentative

nature, and is based on probative value of documents which

are yet to be proved or statements of witnesses who are still

to be examined in court. Such determination by a court is

not conclusive and is made only for the limited purpose for

deciding the bail application. {Para 93}.

 ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55026 of 2021

 Monish Vs State Of U.P. And 3 Other

 Citation No. - 2023:AHC:32270

Author: Hon'ble Ajay Bhanot,J.

Dated:  09.02.2023.

Read full Judgment here: Click here.

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Whether the presumption of culpable intent U/S 29 of the POCSO Act, 2012 is attracted against the accused at the stage of bail?

 Section 29 of the POCSO Act, 2012 creates a presumption

of culpable intent against the accused person. The provision

cannot be read to mean that the accused shall be presumed to

be guilty at the lodgement of the F.I.R. or criminal complaint

till proven innocent at the trial. The presumption of innocence

which is a fundamental tenet of criminal jurisprudence cannot

be turned on its head by a faulty interpretation of the provision.

The prosecution has to establish primary facts after attaining

the required standards of evidence to trigger the presumption

of culpable intent. {Para 67}

IX. b. Conclusions : Sections 29 and 30 of POCSO

Act & bails under the POCSO Act:

94. The consideration of presumption of culpable intent under

Sections 29 and 30 of the POCSO Act and as contemplated in

Rajballav (supra) at the stage of bail shall be governed by the

principles of evidential law as regard presumptions and the

holdings in Tofan Singh (supra), Joy V.S. (supra), Navin

Dhaniram Baraiye (supra), Dharmander Singh (supra) and

Sahid Hossain Biswas (supra) and shall be made in the

following manner:

1. Presumption of culpable intent under Section 29 of the

POCSO Act, 2012 will be attracted only in the manner and

stage discussed earlier in the judgement.

2. Presumption of culpable intent of the accused under

Sections 29 of the POCSO Act, 2012 shall not apply at the

stage of pretrial bails.

 ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55026 of 2021

 Monish Vs State Of U.P. And 3 Other

 Citation No. - 2023:AHC:32270

Author: Hon'ble Ajay Bhanot,J.

Dated:  09.02.2023.

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Whether presumption under S 29 of the Pocso Act is applicable if prosecution has failed to prove foundational facts?

 The learned Additional Public Prosecutor Shri S.S. Doifode would strenuously contend that the statutory presumption under Section 29 of the POCSO Act is absolute. The date of birth of the victim 12-10-2001 is duly proved, and is indeed not challenged by the accused, and the victim, therefore, was a child within the meaning of Section 2(d) of the POCSO Act, is the submission. The submission that the statutory presumption under Section 29 of the POCSO Act is absolute, must be rejected, if the suggestion is that even if foundational facts are not established, the prosecution can invoke the statutory presumption. Such an interpretation of Section 29 of the POCSO Act  would render the said provision vulnerable to the vice of unconstitutionality. The statutory presumption would stand activated only if the prosecution proves the foundational facts, and then, even if the statutory presumption is activated, the burden on the accused is not to rebut the presumption beyond reasonable doubt. Suffice it if the accused is in a position to create a serious doubt about the veracity of the prosecution case or the accused brings on record material to render the prosecution version highly improbable.

6. The statutory presumption under Section 29 of the POCSO Act must be understood and tested on the anvil of the golden thread which runs through web of the criminal jurisprudence system in this country that an accused is presumed to be innocent till the guilt is conclusively established beyond reasonable doubt. In the factual matrix, at best, the prosecution has succeeded in bringing on record material giving rise to some suspicion. However, it is trite law that suspicion is not a substitute to proof. The gulf between "might have committed" and "must have committed" must be bridged by the prosecution by unimpeachable and confidence inspiring evidence. The fact that Hindi test books were found on the bench of the victim who was answering the Hindi paper, that the Investigating Officer did not  make any enquiry with the victim and that the Investigating Officer did not make any effort to record the statement of the seventeen students who were present in the examination hall when the incident allegedly happened, cumulatively creates a doubt, and the doubt is not a speculative or fanciful doubt, about the veracity of the version of the victim. The benefit of this nagging doubt must necessarily go to the accused.

Bombay High Court

Amol  Dudhram Barsagade Vs State Of Maharashtra on 23 April, 2018

Bench: R. B. Deo

CRIMINAL APPEAL NO.600 OF 2017

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How to appreciate evidence in case under POCSO Act?

A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice. The evidence of a sole prosecutrix, if it inspires confidence, can definitely, as submitted by the learned Assistant Public Prosecutor, be the sole basis for conviction. However, the evidence in such cases must be of sterling quality. The defence has brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault. Although, we hasten to add that in some cases dependent upon the degree of violation, the lack of injury alone may not be a safe gauge. The defence has also been able to bring out certain facts

about the altercations and fight between them immediately preceding the lodging of the FIR (Exhibit-2) which also leans towards the claim of the innocence of the respondent.

15. Section 29 of the POCSO Act invoked by the learned Assistant Public Prosecutor at the appeal stage provides a reverse burden upon the accused in a prosecution under sections 3, 5, 7 and 9 of the POCSO Act. Charge was framed against the respondent under section 5(l) of the POCSO Act and therefore, section 29 of the POCSO Act may be attracted. We are, however, of the view that in order to shift the onus upon the accused by invoking the provision of section 29 of the POCSO Act, the foundational facts of the prosecution case must be established by leading evidence. In the present case, the learned Special Judge has disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. The disbelief is firmly based on the evidence in cross-examination of the complainant (PW-1), the minor prosecutrix and PW-3, the main witnesses. The disbelief was also fortified by the medical as well as forensic evidence which did not support the oral testimony of forceful penetrative sexual assault by the respondent and in fact overruled it. Sans the deposition of the minor prosecutrix, there is no other oral or material evidence. If, therefore, the deposition of the minor prosecutrix is disbelieved, there is no evidence in support of the prosecution‟s story. In such circumstances, the question of putting the onus upon the accused to prove his

innocence would be contrary to well settled principles of criminal jurisprudence. Had the testimony of the minor prosecutrix sustained judicial scrutiny, the mere lack of injuries alone may not have persuaded us to discard it. We, therefore, refrain from invoking the provision of section 29 of the POCSO Act on examination of the materials on record.

THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appellate Jurisdiction)

DIVISION BENCH:  MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE

 MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE 

Crl. A. No. 07 of 2019

State of Sikkim Vs   Karna Bahadur Rai, 

Date of judgment : 14.03.2020

Bhaskar Raj Pradhan, J.

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When court should not draw presumption under S29 of Protection of Children from Sexual Offences Act?

S.29 of The Protection of Children from Sexual Offences Act

Where a person is prosecuted for violating any of the provisions under sections 3, 5, 7 and section 9 of this Act, and where the victim is a child below the age of sixteen years, the Special Court shall presume, that such person has committed the offence, unless the contrary is proved.

The trial court also, in our opinion, erred in relying on the
presumption under Section 29 of the Protection of Children From Sexual
Offences Act, 2012. The prosecution, in the present case, had utterly even
failed to remotely connect the appellants with the commission of the

offence. The substantive evidence also does not disclose that the
prosecutrix / victim had named the accused as the offenders. In the absence
of that, therefore, the presumption cannot be drawn. Such is not the scope
of presumption under Section 29 of the Protection of Children From Sexual
Offences Act, 2012.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 795 OF 2014
Vishal @ Sagar Vasant Waghmare V The State of Maharashtra

CORAM: P. V. HARDAS &
G. S. KULKARNI, JJ.
DECEMBER 16, 2014
Citation; 2015 ALLMR(cri)301

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