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Calcutta HC: Section 29 of POCSO Act not Applicable if Patent Contradictions observed in Prosecution Case

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Mitali Palnitkar

Published On: February 08, 2022 at 16:25 IST

The Calcutta High Court observed that lacunae in the Prosecution Case due to patent contradictions cannot be cured by resorting to statutory presumption under Section 29 of the Protection of Children against Sexual Offences Act, 2012 (POCSO Act).

The Bench comprised of Justices Joymalya Bagchi and Bivas Pattanayak. It observed, “Glaring lacunae in the Prosecution Case undermines the credibility of the factual foundations which require to be Prima Facie established to attract the statutory presumption.”

It added,

“When the primary facts relating to time, place and circumstances constituting the Offence are not Prima Facie established due to patent contradictions or inherent improbabilities, such lacunae cannot be cured by resorting to statutory presumptions in law.”

The Appeal was filed against the Sessions Court Order Convicting the Appellant for committing an Offence under Section 376 (2)(i)(n) of Indian Penal Code (IPC) and under Section 6 of POCSO Act. The Appellant was a private tutor of the Victim, a student of Class IX.

It was alleged that the Appellant raped the Victim at her house on August 8, 2017 and told about the incident to her mother on September 14, 2017. The mother of the Victim lodged a Police Complaint. The statement of the Victim was recorded under Section 164 of Code of Criminal Procedure (CrPC), and was medically examined.

The Appellant was Arrested and Charge Sheet was filed against him. He claimed the defence of innocence and false implication.

The Court observed that the ingredients of Offence of aggravated penetrative sexual assault were not established under Section 6 of POCSO Act as there were patent contradictions in the earlier statement of the minor made before her mother and her statement before the Magistrate.

The Victim told her mother that she was raped around 1:30 pm at the Appellant’s house. But she stated before the Magistrate that she was raped around 8:30 pm in her own house. This indicated a clear departure with respect to time and place.

The Court stated that she visited the Appellant’s house without informing her mother and her conduct was unnatural as a girl who was subjected to forcible rape. It also noted that there was no evidence to establish that the girl was a minor. It was only mentioned that she was a student but no birth certificate was produced before the Court.

The Court observed that Section 29 of POCSO Act was not applicable due to the patent contradictions in the Case. It set aside the Order of Conviction and Acquitted the Appellant.