Failure To Prove Foundational Facts For Invoking Presumption U/S 29 POCSO Act Fatal: Madras High Court Acquits 55-Year-Old Man
The Court finds absence of age proof, unreliable medical evidence and improvised testimony insufficient to sustain conviction.
The Madras High Court has set aside the conviction of a 55-year-old man under the Protection of Children from Sexual Offences Act, 2012 (the Act) holding that the prosecution failed to establish the foundational facts necessary to invoke the statutory presumption under Section 29 of the Act. The Court observed that conviction under the POCSO framework cannot rest on presumption alone when the prosecution itself fails to prove essential ingredients of the offence.
In light of the absence of proof regarding the victim’s age, inconsistencies in testimony, lack of corroborative medical evidence and negative forensic findings, the Court held that the prosecution had failed to establish foundational facts. The Court observed that the trial court committed a serious legal error by shifting the burden onto the accused without the prosecution first discharging its primary burden of proof.
Justice G. Arul Murugan observed, “In the absence of the prosecution even proving the age of the victim to be below 18 years to invoke the provisions of the POCSO Act and in view of the improvised and exaggerated testimony of PW2 from the statement recorded in Ex.P14 and the fact that the evidence of PW14/Inspector of Police and the Doctor/PW11 regarding the mental health condition of the victim itself is inconsistent to each other and further, when there are glaring discrepancies even in respect of the medical opinion furnished in Exs.P6 and Ex.P8, which has later been developed in Ex.P7 after a period of 7 months to support the case of sexual assault and considering the fact that the appellant was aged 55 years on the alleged date of occurrence and the absence of any spermatozoa in the chemical analysis report in Ex.P9, the prosecution had failed to prove the foundational facts in respect of the charges levelled against the accused to raise the presumption under Section 29 of the POCSO Act”.
“On reappreciation of the materials and the entire evidence available on record, this Court is of the considered opinion that the finding arrived at by the trial Court in convicting the appellant is completely perverse and suffers from serious infirmity. Therefore, the conviction and sentence imposed on the appellant cannot be sustained and is liable to be interfered with”, the Bench further noted.
Advocate E. Kannadasan appeared for the appellant and J. Subbiah, Government Advocate appeared for the respondent.
In the matter the trial court had found the accused guilty of the charges and convicted him for offences under Section 5(l) r/w 6 of the POCSO Act and Section 506(ii) of IPC, however, acquitted the accused for offence under Section 12 r/w 11(i) of the POCSO Act and imposed the sentence.
Examining the testimonial evidence, the Court found significant inconsistencies between the victim’s statement recorded before the Magistrate under Section 164 CrPC and her deposition during trial. In the earlier statement, the allegation was confined to touching of private parts and did not disclose penetrative sexual assault. However, allegations of penetration surfaced only during trial testimony, on that the Court observed that the evidence appeared exaggerated and improvised in tune with the complaint lodged by the victim’s mother, raising the possibility of tutoring. Holding that the testimony did not inspire confidence, the Court said that it would be unsafe to sustain conviction solely on such evidence.
“When the statement of the victim in Ex.P.14 was only to the effect that the accused had touched the private parts and she was not aware as to what happened thereafter and she herself returned back home, her testimony before the court to the effect that she felt pain when the accused committed penetrative sexual assault is exaggerated and the version of PW2 seems to be tutored by her mother/PW1. When she was clear in her statement before the learned Magistrate in Ex.P14, the testimony before the Court was exaggerated, improvised in tune with the complaint given by her mother in Ex.P1”.
The Court noted that except for the oral assertion of the victim’s mother regarding the date of birth, there was no legally admissible material proving that the victim was below eighteen years on the date of occurrence. In such circumstances, the prosecution failed to establish that the victim fell within the statutory definition of a “child”.
The Bench noted that the examining doctor admitted during deposition that hymenal rupture could occur due to activities such as cycling or other physical habits. The Court further noticed that a subsequent medical certificate issued nearly seven months later introduced an additional observation that the vagina admitted one finger, which appeared to be an improvement over earlier medical finding.
“In the absence of the prosecution proving the foundational facts, the trial court miserably erred in shifting the burden on the appellant and convicting the appellant for the offences under the POCSO Act simply by invoking the presumption under Section 29 of the POCSO Act”, it noted.
Consequently, the Court allowed the appeal, set aside the conviction and sentence imposed by the trial court, and acquitted the appellant of all charges under the POCSO Act.
Cause Title: Sundaram v. State by the Inspector of Police [Neutral Citation: 2026:MHC:1272]
Appearances:
Appellant: E. Kannadasan, Advocate.
Respondent: J.Subbiah, Government Advocate (Crl. Side).