The Allahabad High Court has recently set aside a judgment and order of the court of Additional District and Sessions Judge/Special Judge (POCSO Act), Hathras, where the Judge had convicted the accused and sentenced him to death for rape and murder of a minor girl, thus, acquitting the accused of his charges and releasing him.

The Court while acquitting the accused observed, "We, therefore, hold that to take the benefit of the presumptive provisions of section 29 of the Pocso Act, the prosecution, by leading legally admissible evidence, would have to prove the foundational or basic facts in respect of commission of the offence(s) specified therein by the accused. Mere submission of police report against the accused in respect of the offence(s) specified in section 29 of the Pocso Act would not absolve the prosecution of its responsibility to lead legally admissible evidence to prove the foundational facts with regard to their commission by the accused."

The Allahabad High Court bench comprising of Justice Manoj Misra and Justice Sameer Jain was hearing an appeal filed by the accused against the order passed by the district court in a matter in which a report was filed by the father of the victim alleging that one night when he and his wife were away from the home and the victim, who was about 14 years, was with her maternal grandmother the accused came to their house and misbehaved with the victim and when the victim resisted the accused set her ablaze.

Senior Advocate Mr Vinay Saran appeared for the Appellant - Accused before the Division Bench of the High Court.

When the victim was brought into the hospital she was examined and a medical report was prepared which suggested thermal burns to the extent of 85%. The general condition of the patient was noted as critical. In the column concerning the Central Nervous System of the patient, it was noted conscious and oriented. The internal examination of Genitalia was made by the doctor on duty where he noted that there was no bleeding seen, no tear on the vulva and a small healed tear present on the hymen. The victim later died and in the autopsy, it was revealed that the cause of death was septicaemia as a result of thermal burn injuries.

An inquest was conducted and a vaginal smear and swab was sent to forensics where they did not find any presence of spermatozoa but found the presence of blood. A charge sheet was prepared and based on that charge sheet after taking cognizance the Court framed charges under Sections 302, 376, 326A, 354, 354A and 452 of IPC and under Sections 7/8 and 5/6 of the Protection of Children from Sexual Offences Act, 2012.

The Allahabad High Court heard the Counsel appearing for the accused submitted before the bench that the reverse burden put by Sections 29 and 30 of the Pocso Act applies only when the foundational facts in respect of the commission of specified offences by the accused are proved by legally admissible evidence. In absence of proof of foundational facts with regard to the commission of an offence punishable under the Pocso Act, the reverse burden cannot be placed on the accused to prove his innocence therefore, the judgment and order of the trial court were vitiated by a manifestly erroneous approach in law.

The submissions of the State were refuted by the Counsel appearing for the State.

The Bench of Allahabad High Court observed that "The principle that a person should be presumed innocent until proven guilty is a fundamental principle in criminal jurisprudence and finds support in Article 14 (2) of the International Covenant on Civil and Political Rights. But in special circumstances the legislature may put a reverse burden on the accused to prove his innocence."

The Court also observed that "A statutory provision laying down the procedure for holding an accused guilty of an offence by raising a presumption with regard to his guilt, must meet the tests of being fair, just and reasonable as enshrined in Articles 14 and 21 of the Constitution of India. To ensure that a statutory provision putting a reverse burden on the accused does not violate the mandate of Articles 14 and 21 of the Constitution, it has to be interpreted in a manner that it does not lead to absurd result such as mistaken conviction on mere failure to lead satisfactory evidence in defence after submission of police report."

The Court while setting aside the judgment of the District Court held that, "though the presumptive provisions contained in sections 29 and 30 are there in the Act but their operation is limited to the offences specified therein. No doubt, by virtue of sub-section (2) of section 28 of the Act, while trying an offence under the Act, a Special Court has also to try an offence other than the offence referred to in sub-section (1) of section 28 of the Act (i.e. the offences punishable under the Act), with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial but, as the presumptive provisions of section 29 are applicable only to the offences specified therein, they would not apply to prove an offence of murder punishable under section 302 IPC. In our view, therefore, the trial court completely misunderstood the true import of the presumptive provisions contained in section 29 of the POCSO Act."

The Allahabad High Court held that there was no worth-while evidence on record to prove the charges against the Accused and that in absence of proof of foundational facts with regard to the commission of specified offences punishable under the Act, the benefit of presumption would not be available to the prosecution under section 29 of the Act, thus the appeal was allowed.

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