Pranav B Prem

The Punjab & Haryana High Court recently acquitted two individuals convicted under the Protection of Children from Sexual Offences (POCSO) Act, citing insufficient evidence to support the allegations. The division bench comprising Justice Sanjeev Prakash Sharma and Justice Sanjay Vashisth emphasized that the presumption of guilt under Section 29 of the Act cannot be invoked in the absence of substantial evidence.

Section 29 of POCSO Act: Presumption of Guilt

As per Section 29 of the POCSO Act, courts are required to presume that the accused committed or abetted certain offences, including penetrative sexual assault or aggravated sexual assault, unless proven otherwise. However, the bench clarified, "Even in the absence of incomplete evidence, the presumption under Section 29 of the POCSO Act would not be applicable." The judgment observed that the prosecution had failed to establish the guilt of the accused beyond reasonable doubt. The court highlighted inconsistencies in the prosecution's narrative and found the case to be lacking credible evidence.

Case Background

The case involved allegations that a 13-year-old girl was kidnapped in 2018 and later claimed she had been raped by one of the accused in 2017. The trial court convicted one accused under Section 4 of the POCSO Act and Sections 363 and 366 of the IPC, sentencing him to 20 years of rigorous imprisonment. Another accused was convicted under Section 6 of the POCSO Act and given the same sentence.

Upon appeal, the High Court scrutinized the evidence and found the prosecution's case questionable. The girl’s testimony was inconsistent, presenting a new version before the court that contradicted the prosecution’s story. The court remarked, "The victim nowhere states anything of her being recovered from the place which is narrated by the official witnesses of the investigation team."

Flaws in Investigation

The court pointed to significant contradictions among prosecution witnesses, calling the recovery of the victim as projected by the investigating agency "completely false." It further noted that the investigating officer failed to conduct inquiries with local residents near the alleged place of occurrence. Highlighting the lack of proper investigation, the court observed that the police seemed to have developed a narrative of convenience, rather than relying on factual evidence.

Incomplete Medical Evidence

The High Court noted that the medical evidence failed to conclusively establish the allegations of sexual assault. It remarked, "From the medical evidence coupled with other circumstances available on record, it comes out that there is incomplete medical evidence and the allegation of committing of the sexual intercourse with the victim is not fully proven." Regarding the alleged incident in 2017, the court pointed out that no specific date or corroborative evidence was provided. This raised further doubts about the prosecution's case.

Reliance on Rakesh v. State of Haryana

The bench referred to the precedent in Rakesh v. State of Haryana, wherein it was held that while the statutory presumption under Section 29 of the POCSO Act imposes a reverse burden on the accused, the prosecution must first establish primary facts constituting the offence. The court reiterated that the presumption cannot substitute for substantive evidence.

Setting aside the convictions, the court stated, "The investigation has not been conducted properly, and the Investigation Officer has failed to perform his duty of collecting the entire evidence." The bench directed the immediate release of the accused and allowed their appeals.

Cause Title: Virender v. State of Haryana and another appeal

Date: December-13-2024

Bench: Justice Sanjeev Prakash Sharma and Justice Sanjay Vashisth 

[Read/Downlad order]