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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Ritu Bahri, Manisha Batra, JJ.
Rakesh – Appellant
Versus
State Of Haryana – Respondent
CRA-D-202-2021 (O&M)
Decided On : 24-11-2022
POCSO Act - Conviction under Section 6 - [Sexual Offence against a Minor] - [Section 6 of The Protection of Children from Sexual Offence Act, 2012] - The court discussed the interpretation of Section 29 of the POCSO Act, the admissibility of evidence, and the burden of proof on the accused. The court emphasized the need for foundational facts to activate the statutory presumption and the requirement for the accused to create a serious doubt about the prosecution's case. The court also highlighted the principles of res gestae and the necessity of a test identification parade. The court found that the evidence presented by the prosecution was not sufficient to establish the guilt of the accused, leading to the acquittal.
Fact of the Case:
The case involved the rape of a three-year-old girl. The prosecution relied on the statements of the victim's parents, medical reports, and evidence of the accused's disclosure statement and recovery of the victim's clothing. The trial court convicted the accused based on this evidence.
Finding of the Court:
The court found that the evidence presented by the prosecution, including the statements of the victim's parents, disclosure statement, and recovery of clothing, was not sufficient to establish the guilt of the accused beyond a reasonable doubt. The court emphasized the need for foundational facts to activate the statutory presumption and the requirement for the accused to create a serious doubt about the prosecution's case. The court also highlighted the principles of res gestae and the necessity of a test identification parade. As a result, the court acquitted the accused due to the lack of sufficient evidence.
Issues: The key issues in the case included the admissibility of evidence, the sufficiency of the prosecution's case, the interpretation of Section 29 of the POCSO Act, and the requirement for foundational facts to activate the statutory presumption.
Ratio Decidendi: The court's decision was based on the principles of evidence admissibility, burden of proof, and the necessity of foundational facts to activate the statutory presumption. The court emphasized the need for the accused to create a serious doubt about the prosecution's case and highlighted the principles of res gestae and the necessity of a test identification parade.
Final Decision: The court acquitted the accused due to the lack of sufficient evidence to establish his guilt beyond a reasonable doubt.
JUDGMENT
Manisha Batra, J. - The present appeal has been directed against the judgment of conviction dated 05.02.2020 and order of quantum of sentence dated 06.02.2020 passed by the learned Additional Sessions Judge (Fast Track Court), Gurugram in Sessions case No.198 of 2018 titled State v. Rakesh whereby the appellant-accused had been held guilty for commission of offence punishable under Section 6 of The Protection of Children from Sexual Offence Act, 2012 (for short 'POCSO Act') and had been sentenced to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs.50,000/- and in default of payment of fine, he was further sentenced to undergo rigorous imprisonment for a period of one year. Simultaneously, the victim was directed to be paid compensation of Rs.5 lacs by DLSA, Gurugram.
2. Brief matrix of the case is that on 21.10.2016, on receipt of an information regarding an incident of rape having taken place with a three years' old girl in the area of Basai Enclave, Gurugram and she being referred to General Hospital, Gurugram, a police party headed by PW-2 ASI Amandeep Kaur reached there and recorded statement of mother of the victim 'R' (name withheld) who alleged that the victim 'S' (name withheld) who was her three years old daughter was playing outside her jhuggi at about 7.30 PM on the same evening while she was cooking meals. Her daughter had suddenly disappeared. She started making search for her and found her while crying in front of Green Field Public School. She brought the victim back to her jhuggi and on reaching there, the victim complained of pain on her private parts. The complainant noticed blood oozing out of her private parts. In the meanwhile, her husband 'A' (name withheld) also reached there and they took the victim to a private doctor who advised them to take her to some Government hospital. The victim was medico legally examined. She was also examined by a gynecologist and was referred to Safdarjang Hospital, Delhi as her condition was critical. After her discharge from the hospital, she was taken by the police to the place of occurrence on 25.10.2016 which was identified by her. The accused Rakesh was also arrested on the same night on the basis of some secret information. He was interrogated and suffered disclosure statement admitting his involvement in the crime and demarcated the place of occurrence. He also got recovered capri/underwear of the victim from the bushes existing near the spot of occurrence. The statement of the mother of the victim under Section 164 Cr.P.C. was recorded on 26.10.2016. The medico legal examination of accused was also conducted and his blood samples were taken for DNA profiling.
3. After completion of necessary investigation and usual formalities, challan under Section 173 Cr.P.C. was presented for trial of the accused. The case was committed to the Courts of Sessions. On finding a prima facie case for commission of offence punishable under Section 6 of POCSO Act, the accused had been charge-sheeted accordingly. He pleaded not guilty and claimed trial.
4. To substantiate its case, the prosecution produced 12 witnesses in all. The victim was summoned as PW-5 by the learned trial Court. However, she was declared to be an incompetent witness. The father of the victim was examined as PW-6 and mother as PW-7. The prosecution also examined PW-2 ASI Amandeep Kaur who deposed about conducting investigation from the stage of receipt of information about the incident till culmination of the entire investigation proceedings and proved the steps taken by her during the course of investigation leading to collection of entire incriminating evidence and justifying the prosecution of the accused for committing rape upon the victim. The learned Public Prosecutor tendered in evidence Ex.PX FSL report, Ex.P-20 medical examination report of victim, Ex. P-20/A opinion of gynecologist and Ex.P-21 medico legal report of the victim as prepared by doctor of Safdarjang Hospital,
AI
The main legal point established in the judgment is the requirement for foundational facts to activate the statutory presumption under Section 29 of the POCSO Act and the need for the accused to crea....
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....
School certificate determines minor's age preferentially; POCSO conviction upheld on credible victim testimony despite delay, contradictions (unproved), negative medicals; presumption activated post ....
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.
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