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.
