The Hon’ble Supreme Court has given a remarkable decision in a criminal appeal (by way of SLP). The appellant-accused has been convicted under S.363 IPC and S.6 read with S.29 of POCSO Act 2012.
The prosecution had alleged that the accused
had taken a minor girl aged 2.5 years with him to a public park without
knowledge of her mother. Upon searching for her, her mother and her uncle
reached to the park and took her away from the accused. Later, when they
reached to their ‘jhuggi’ the girl went asleep. When she woke up and her mother
took her for urine, she saw blood stains on girl’s ‘pyjami’ and reddishness on
her vaginal area. The mother took her daughter to a private doctor who asked her
to report the incident to the Police. Hence, the accused had been arrested and
tried by the Trial Court. The Trial Court relied on testimony of the girl’s mother,
the private doctor and the girl’s uncle, and convicted the accused for offence
of S.363 IPC with 1 year of rigorous imprisonment and fine of Rs.3000 and 10
years of rigorous imprisonment with a fine of Rs.5000. Out of the total of Rs.8000,
Rs.7000 has to be paid to the victim. Later, on appeal in the High Court, the High
Court affirmed the order of the Trial Court and maintained the punishment. Hence,
the accused approached the Hon’ble Supreme Court.
The Supreme Court took note of the evidence before
the Trial Court, and said that apart from the view of the private doctor who suggested
the respondents to report to police, the medical examiner who examined the girl
didn’t report any injury to the hymen of the girl and said that her hymen is
still intact. Also, the forensic expert who examined the ‘pyjami’ of the victim
reported in his report that no organic material i.e. semen was found. The FSL
report denied the claims of the prosecution.
The SC while examining the statements of the
mother and the doctor held that their statements had material infirmities which
can not be ignored since she was the primary witness of the incident and the
doctor had claimed that it was him who first reported the incident but the Police
Report does not indicate the same.
The Supreme Court said that the statutory
presumptions given in S.29 and 30 of the POCSO Act are not absolute and the reverse
burden of proof upon the accused must be supported by prosecution evidence. Mere
indication that the statute provide for presumption that unless the accused
proves that he is not guilty of the act, it will be presumed that the accused
had committed, abetted or attempted to commit or abet such offence, has to be
supported by strong prosecution case. Such presumption cannot hold on itself because
the statute provides for it. If allowed such prosecution, the prosecutrix would
invoke such statutory presumptions to the Court and would require the Court to
convict the accused under the said provisions.
The Court said that S.30 of POCSO Act also provide
that it shall be defense for the accused to prove the fact that he had no such
culpable mental state (Mens Rea) with respect to the act charged as an offence
in the prosecution.
The Supreme Court said that similar provisions like Section 29 and Section 30 in the POCSO Act raising presumption of guilt and providing for rule of reverse burden are found in other statutes also. They are:
- Sections 35 and 54 in the Narcotic Drugs and Psychotropic Substances Act, 1985,
- Section 20 in the Prevention of Corruption Act, 1988,
- Section 57 in the Wild Life (Protection) Act, 1972,
- Section 10C in the Essential Commodities Act, 1955,
- Section 10(7-B) in the Prevention of Food Adulteration Act, 1954,
- Sections 123, 138A and 139 in the Customs Act, 1962,
- Section 39 in the Foreign Exchange Management Act, 1999, and
- Sections 138 and 139 of the Negotiable Instruments Act, 1881 also create presumption about existence of certain facts relating to negotiable instruments and their negotiability.
The SC said that such statutory provisions do
not hold absolute presumptions. The Court in para 7.3 of the judgment took
reference to a decision of the Bombay High Court. The Bombay High Court in
Navin Dhaniram Baraiye vs. State of Maharashtra, through P.S.O., P.S. Ajni,
District Nagpur (2018 SCC OnLine Bom 1281), pertinently observed about the
nature and operational ambit of Section 29 of the POCSO Act, “A perusal of the
above quoted provision does show that it is for the accused to prove the
contrary and in case he fails to do so, the presumption would operate against
him leading to his conviction under the provisions of the POCSO Act. It cannot
be disputed that no presumption is absolute and every presumption is
rebuttable. It cannot be countenanced that the presumption under Section 29 of
the POCSO Act is absolute. It would come into operation only when the
prosecution is first able to establish facts that would form the foundation for
the presumption under Section 29 of the POCSO Act to operate.”
The High Court proceeded to state
further, “Otherwise, all that the prosecution would be required to do is to
file a charge sheet against the accused under the provisions of the said Act
and then claim that the evidence of the prosecution witnesses would have to be
accepted as gospel truth and further that the entire burden would be on the accused
to prove to the contrary. Such a position of law or interpretation of the
presumption under Section 29 of the POCSO Act cannot be accepted as it would
clearly violate the constitutional mandate that no person shall be deprived of
liberty except in accordance with procedure established by law.”
The Supreme Court accepted the defense
argument that the case has been made out of a prior enmity between the accused
and the victim’s family relating to a common water connection. The Court held
that the rebuttal of presumption by the accused could be in several ways as may
be permissible in law. The accused may demolish the prosecution version by discrediting
the prosecution witnesses or falsify them in the cross-examination. The
presumption could be kept at bay by showing inherent inconsistencies and
contradictions in the evidence of the prosecution. The rebuttal may be achieved
by pointing out the absurdities and the gaps in the prosecution story and by
bringing out the loopholes therein. The absence of proof of relevant facts,
mismatch of ocular and medical evidence and non-corroboration of the evidence in
different walks may also be good tools for rebuttal.
Further the Supreme Court relied on
Naresh Kumar alias Nitu vs. State of Himachal Pradesh (2017) 15 SCC 684, while
speaking with reference to the similar provision under the NDPS Act inter alia observed
that in the stringent nature of the provisions of the NDPS Act, the concept of
reverse burden of proof, the presumption of culpability under Section 35 and
the presumption against the accused under Section 54, any reliance on Section
114 of the Evidence Act could be applied, in any case, only at the risk of a
fair trial to the accused, suggesting thereby that the operation of provisions
of such nature cannot be permitted to discount the fundamental norms of the
fair trial, which is the right of the accused under Article 21 of the
Constitution.
Hence, the SC held that even if initially
the provisions of Section 29 and Section 30 of the POCSO Act operated to raise
presumption against the accused, the evidence of the prosecution manifested inconsistencies,
improbabilities and material contradictions. The medical evidence was
non-corroborative in all respects, suggesting the non-commission of offence on part
of the appellant. And so, the SC set aside the decision of the Trial Court and acquitted
the appellant from all charges.
Legal Citation: Deepak IN JC v.
State Govt. of NCT Delhi (2026 INSC 1008)
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