[Section 29 POCSO Act] Guilt Cannot Be Presumed Unless Foundational Facts Are Proven Beyond Doubt: Delhi High Court

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Court clarified that while the testimony of a child victim is sufficient evidence for conviction, such testimony must be unassailable, trustworthy, and of sterling quality

The Delhi High Court, in its recent judgment, emphasized that per Section 29 of the Protection of Children from Sexual Offences Act 2012 (POCSO Act), the presumption of guilt would operate only after the prosecution has proved the basic facts of the case beyond a doubt.

After these facts are proven, the accused can contest this presumption by undermining the credibility of prosecution witnesses or pointing out discrepancies in the prosecution's narrative, court highlighted. 

The bench of Justice Anoop Kumar Mendiratta held, “Section 29 of POCSO Act provides that Court shall presume that the accused has committed the offence for which he is charged with, until contrary is proved. However, the presumption would operate only when the prosecution proves the foundational facts in the context of allegation against the accused beyond reasonable doubt”.

The court further observed, “After the prosecution establishes the foundational facts, the presumption raised against the accused can be rebutted by discrediting the prosecution witnesses through cross-examination and demonstrating the gaps in prosecution version or improbability of the incident or lead defence evidence in order to rebut the presumption by way of preponderance of probability”.

An appeal was filed by a man against his conviction order passed by the Trial Court. As per the prosecution's version, the victim, identified as 'R' and approximately 12 years old, had lodged a written complaint accusing the convict of misconduct. Allegedly, the incident occurred when the victim was alone with the convict in her chachi's (M) room, where she claimed he kissed and touched her inappropriately and threatened her against reporting it. 

Advocate Nagendra Kasana, representing the convict, argued that the convict was falsely accused due to family disputes. He pointed out discrepancies in the victim's statements and emphasized the delayed filing of the FIR.

In contrast, Additional Public Prosecutor ​​Meenakshi Dahiya, supported the trial court's decision, asserting the credibility of the victim's testimony and explaining the delay in reporting the incident. She considered the contradictions raised by the convict's side as insignificant.

The principle is well settled that the Court can base conviction on the testimony of a child victim, if the same is credible and truthful. Corroboration is not a must on record but is a rule of prudence”, the court observed.

The court said that caution is required when depending on the testimony of a child victim. It emphasized, “The version put forth has to be unassailable, trustworthy and of sterling quality, capable of holding appellant guilty on the basis of solitary evidence”.

The bench noted that the victim provided different statements on two different situations, altering some details. She provided varying accounts, leading to inconsistencies and doubts, the bench highlighted.

The court noted inconsistencies and delays in reporting, casting doubt on the case. The lack of clarity and reliability in witness testimonies raised suspicion. The defense presented evidence supporting the convict's innocence, indicating a motive for false implication due to family discord.

Accordingly, the high court set aside the conviction and allowed the appeal. 

Case Title: Veerpal @ Titu v State (2024:DHC:2976)