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IN THE HIGH COURT AT CALCUTTA
Chitta Ranjan Dash, Partha Sarathi Sen, JJ.
Prafulla Mura – Appellant
Versus
The State of West Bengal – Respondent
CRA (DB) 29 of 2022 With CRAN 2 of 2022
Decided On : 03-08-2023
POCSO ACT - SECTION 6 - SECTION 29 - In a case involving a minor victim, the court acquitted the appellant charged under Section 6 of the POCSO Act due to inconsistencies and contradictions in the prosecution's evidence, including the victim's testimony, and failure to establish a foundation for presumption under Section 29.
Fact of the Case:
The appellant was convicted by the trial court under Section 6 of the POCSO Act for allegedly inserting his finger into the vagina of a minor victim. The prosecution relied on the victim's testimony, medical evidence, and statements of witnesses.
Finding of the Court:
The court found inconsistencies and contradictions in the prosecution's evidence, particularly in the victim's testimony regarding the presence of lights and people at the scene of the alleged incident. The court also noted that the prosecution failed to establish a foundation for presumption under Section 29 of the POCSO Act, which requires the accused to rebut the presumption of guilt.
Issues: 1. Whether the prosecution had established the guilt of the appellant beyond reasonable doubt. 2. Whether the inconsistencies and contradictions in the prosecution's evidence affected the reliability of the victim's testimony. 3. Whether the trial court erred in applying the presumption under Section 29 of the POCSO Act.
Ratio Decidendi: 1. The court held that the prosecution had failed to establish the guilt of the appellant beyond reasonable doubt due to the inconsistencies and contradictions in the evidence. 2. The court found that the inconsistencies and contradictions in the victim's testimony, coupled with the lack of corroborating evidence, raised doubts about the reliability of her testimony. 3. The court held that the trial court erred in applying the presumption under Section 29 of the POCSO Act without first establishing a foundation for the presumption based on the prosecution's evidence.
Final Decision: The court allowed the appeal, set aside the conviction and sentence imposed by the trial court, and acquitted the appellant.
JUDGMENT :
Partha Sarathi Sen, J.
1. In this appeal the judgement of conviction dated 01.12.2021 and order of sentence dated 02.12.2021 as passed in ST 8 of 2021 arising out of SC 155 of 2020 by the Learned Additional Sessions Judge, 2 nd Court, Tamluk, Purba Medinipur has been impugned. By the impugned judgement learned trial court found the present appellant guilty of offence under Section 6 of POCSO Act and thus sentenced him to suffer R.I for 20 years and also to pay fine of Rs.25,000/- i.d. to suffer further R.I for six months with a recommendation to pay Rs. 3 lacs to the victim girl as compensation by the State Government after adjusting the interim compensation of Rs.50,000/-. The convict felt aggrieved and thus preferred the instant appeal.
2. For effective disposal of the instant appeal the facts leading to initiation of the aforesaid trial is required to be dealt with in a nutshell.
3. On 29.11.2020 one Shri X (name and other details not disclosed to avoid identity) the father of the alleged victim girl lodged a written complaint with the O/C Tamluk P.S, District Purba Medinipur stating inter alia that on 28.11.2020 a Kali Puja was held at his village where his daughter Ms. Y (name and other details not disclosed to avoid identity) (hereinafter referred to as the ‘victim girl’) went to participate along with some of her friends. It has been alleged further in the said written complaint that the present appellant who was then aged about 40 years took the victim to a nearby arum field (Kochu Bon) at about 8:30 pm and thereafter inserted his finger in the vagina of the victim girl as a result whereof the victim girl suffered bleeding injury and thereafter the victim girl narrated the entire incident to the informant and at that time she was crying. It is the further version of the informant that thereafter she was taken to Tamluk District Hospital where the victim was admitted for her treatment as her injury was serious. On the basis of the aforesaid written complaint Tamluk P.S Case no. 678 of 2020 dated 29.11.2020 under Section 376 AB IPC and Section 6 of POCSO Act was started.
4. Investigation was taken up and after completion of the same charge sheet was submitted both under Section 376 AB IPC and Section 6 of the POCSO Act against the appellant.
5. Lower Court Record reveals that on 22.01.2021 learned trial court being the Special Court under the POCSO Act considered the charges against the present appellant and accordingly charges under Section 376 AB IPC and Section 6 POCSO Act were framed against the present appellant. Since the present appellant pleaded his innocence before the learned trial court, the trial proceeded.
6. Trial Court Record reveals further that for bringing home the charges as framed against the appellant the prosecution has examined 14 witnesses in all and several documents have been exhibited on their behalf. It is however pertinent to mention herein that before the learned trial court no evidence was adduced on behalf of the defence. However, from the trend of cross-examination and from the answers as given by the present appellant in course of his examination under Section 313 Cr.P.C, it appears that the defence case is based on clear denial and false implication.
7. The prosecution witnesses before the learned trial court can be categorized in the following manner:-
| Private witnesses | Court Officials | Police Officials |
| Officials PW1-victim girl. | PW11-A doctor of Tamluk Hospital under whom treatment of the victim girl was done. | PW8- A lady constable |
| PW2-informant and father of the victim girl. | PW12-Another doctor of Tamluk Hospital who conducted medico-legal examination of the victim girl. | PW10- Another lady constable |
| PW3-Grandmother of the victim | PW14-The doctor who examined the appellant. | PW8- Another lady constable |
| PW4-A co-villager of the inf | ||
In a criminal case, the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt. Inconsistencies and contradictions in the prosecution's evidence may affect the relia....
The need for corroboration of evidence, especially in cases involving child witnesses, and the rebuttable nature of the presumption under Section 29 of the POCSO Act.
The prosecution's failure to establish foundational facts undermines the application of statutory presumptions of guilt in sexual assault cases under the POCSO Act.
The presumption of guilt under Section 29 of the POCSO Act is rebuttable and requires the prosecution to establish foundational facts before the burden shifts to the accused to prove innocence.
Section 10 of POCSO Act says punishment for aggravated sexual assault
Prosecution must establish foundational facts beyond reasonable doubt; mere reliance on victim’s inconsistent testimony is insufficient for conviction.
The presumption of guilt under Section 29 of the POCSO Act is not absolute and requires the prosecution to establish foundational facts before the burden shifts to the accused to rebut the presumptio....
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