Presumption U/S 29 POCSO Isn’t Absolute; Conviction Cannot Be Based On Sympathy: Bombay HC Acquits POCSO Accused
The Bombay High Court reiterated that the presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) is not absolute, therefore, based on such presumption the prosecution cannot be relieved of its responsibility to lead the evidence and prove its case.
The Court added that, in such cases, the sympathy of the Court is bound to be with the victim, but the conviction cannot be based on sympathy and moral consideration.
The Bench of Justice GA Sanap held, “In my view, learned Judge was not right in invoking the presumption provided under Section 29 of the POCSO Act. The presumption is not an absolute presumption. Even on the basis of such a presumption the prosecution cannot be relieved of its responsibility to lead the evidence and prove its case. In short, in order to invoke the presumption under Section 29 of the POCSO Act the foundational facts as to the crime must be fully established to the satisfaction of the Court. In this case, the foundational facts with regard to the identification of the accused and the commission of the crime by the accused has not been proved. In this case, therefore, I conclude that the evidence falls short to prove the guilt of the accused.”
Advocate AC Jaltare appeared for the Appellant while APP RV Sharma appeared for the Respondent.
An appeal was filed challenging the judgment of conviction passed by a Special Judge against the Appellant for the offences punishable under Section 376(2)(1) of the Indian Penal Code, 1860 (‘IPC’) and Section 6 of the POCSO.
It was the case of the prosecution that a 14-year-old, handicapped and mentally retarded was raped by the Accused while her mother was away in the field. The Appellant was the relative of the child victim.
The Court took note of the fact that the victim was mentally retarded. She was also handicapped and, therefore could not walk. To move from one place to another, she had to slide through. The victim could not speak. During the course of the investigation, her statement could not be recorded. Similarly, she was not examined before the Court.
After considering the facts and circumstances and evidence on record the Court concluded that the prosecution miserably failed to establish the identification of the Appellant, being the perpetrator of the crime. The evidence on the point of the identification of the Appellant was not of sterling quality. In the absence of a test identification parade, implicit reliance could not be placed on the evidence of one witness alone. A statement under Section 164 Cr.P.C. of the witness could not be used as a substantive piece of evidence, the Court added.
The Court held, “Learned Judge, in my view, has failed to properly appreciate the above stated facts and evidence properly. It is not out of place to mention that a crime of this kind needs to be condemned. It is a brutal and deplorable crime. In such a crime, the sympathy of the Court is bound to be with the victim. However, the conviction cannot be based on sympathy and moral consideration. However, the conviction cannot be based on sympathy. The accused is entitled to benefit of doubt.”
Accordingly, the Court acquitted the Appellant and set aside the judgment of conviction.
Cause Title: Sanjay v. State of Maharashtra (Neutral Citation: 2024:BHC-NAG:8918)
Appearances:
Appellant: Advocate AC Jaltare
Respondent: APP RV Sharma
