Similar question was posed before Learned Single Judge of this Court in case of Ramprasad v/s State of Maharashtra MANU/MH/1943/2018. Learned Single Judge was dealing with an appeal filed by the convicted accused. While interpreting the nature of presumption under Section 29 of the said Act, it is observed :--
" Thus the presumption that operates under Section 29 of the Protection of Children from Sexual Offences Act is not absolute and it is triggered only when the prosecution is able to prove the foundational facts in the first place. The evidence placed on record by the prosecution is to be examined to first come to the conclusion that the foundational facts of the prosecution case have been established " (para 29).{Para 85}
86. On facts it was observed :--
" In fact for the presumption to operate, as observed earlier, it is necessary that the foundational facts are established by the prosecution, which in the present case, does not appear to have been done by the prosecution " (para 27)
• Conclusion
88. In nutshell, the trial court simply cannot be convict the accused on the basis of the presumption. Because the Court cannot start with only on the basis of the presumption. However presumption will come into picture only when foundational facts are established. That is to say, age of the victim, either of the acts prescribed under Sections 3, 5, 7 and 9 of the POCSO Act are committed. One may not find such wordings in the section itself. But the Constitutional Courts have interpreted similar provisions relating 'presumptions' en-grafted in various Acts. This interpretation of the provisions of relevant Acts is arrived at after considering those provisions of Acts on one hand and presumption of innocence on the other hand. It is interpreted presumption of innocence is human right though not a fundamental right.
89. In this case, foundational facts are not proved. I have already observed the evidence on the basis of statement under Section 164 of the Code can not be considered. So also on the basis of admitted medical case papers, we cannot draw an inference about involvement of the culprit/accused. Hence trial court was wrong in taking recourse to the presumption under Section 29 of the Protection of Children from Sexual Offences Act.
IN THE HIGH COURT OF BOMBAY
Criminal Appeal No. 990 of 2019
Decided On: 09.05.2024
Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.
Hon'ble Judges/Coram:
S.M. Modak, J.
Citation: MANU/MH/3173/2024.
Read full Judgment here: Click here.
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