The Bombay High Court held that once the prosecution successfully proves the core and fundamental facts that lead to the proof of the commission of an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO), a presumption is raised against the accused as per Section 29. The burden of proof then shifts to the accused to rebut this presumption.
In this specific case, the Court found that the accused had failed to rebut this presumption, either through the cross-examination of prosecution witnesses or by presenting any other evidence. Consequently, finding no reason to interfere with the trial court’s judgment, the appeal was dismissed and the conviction was upheld.
A Single Judge Bench of Justice R.M. Joshi noted that in cases involving sexual assault against a child under the POCSO Act, the court is required to give due weightage to the child’s evidence. If any doubt arises from other evidence or circumstances, the court should then look for corroboration. The Bench found that the prosecution had successfully established that the victim was a minor, through her testimony and birth certificate, a fact that was not challenged by the defence.
The Bench observed that while the victim could not recall the exact date of the incident, she clearly narrated the manner in which it occurred. This testimony was found to be supported by an independent witness, a neighbour, who had seen the victim with the accused on the relevant day. The Bench also pointed out that the defence’s attempts to show false implication were inconsistent; different motives were suggested to different witnesses, such as a quarrel over filling water and issues related to financial assistance, which weakened the defence’s case.
Regarding the medical evidence, the Bench observed that although no external injuries were found, the medical certificate indicated redness on the victim’s private part, which supported the allegation of sexual assault. The Bench held that the mere absence of a conclusive opinion from the medical officer regarding sexual assault is not a sufficient ground for acquittal, as medical evidence is opinion-based. The victim’s testimony was deemed consistent with her prior statements and was corroborated by both an independent witness and the medical evidence.
Briefly, an FIR was lodged by the victim’s mother four days after the incident. The informant stated that her daughter, the victim, complained of stomach pain and disclosed that four days prior, a man residing opposite their house had called her on the pretext of giving her food articles, removed her clothes, and committed sexual intercourse with her.
After the informant’s husband returned home and consulted his brother, they proceeded to the police station to lodge the report. Following the report, an investigation was carried out, the victim was medically examined, witness statements were recorded under Sections 161 and 164 of the CrPC, and a spot panchanama was prepared.
Accordingly, the Appellant was convicted by the Special Court for offences under Section 376(2)(i) and 506 of the Indian Penal Code (IPC), and Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). He was sentenced to a maximum of 10 years of imprisonment.
Appearances:
Advocate Akshay Dingale, for the Appellant
APP, Ashok Gawai and Advocate Gunjan Thakkar, for the Respondent
