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The Calcutta High Court bench of Justices Joymalya Bagchi and Abhijit Gangopadhyay held that, statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) does not absolve the Prosecution of its responsibility of establishing and/or probablising primary facts constituting the offence.The judgment was rendered in an appeal against a verdict of the trial court which had convicted the appellant under Section 5(n) of the POCSO Act for penetrative sexual assault and sentenced him to life imprisonment.
The instant case was that the appellant had allegedly outraged the modesty of his 13-year-old step-daughter at his residence firstly on March 24, 2016. Subsequently, on the night of April 14, 2016, the appellant had allegedly raped her in a roadside jungle near his house. Charges were framed under Section 354 IPC and under Sections 9/10 and of the POCSO Act.After considering the evidence, the trial court convicted the appellant for the offence punishable under Section 5 (n) of the POCSO Act and sentenced him to rigorous imprisonment for life. The trial court, however, did not record any verdict with regard to the charges under Sections 9 and 10 of the POCSO Act and under Section 354 of the IPC which relates to outraging of modesty of the victim on March 24. The reasoning given by the trial court was that the appellant had been found guilty of the graver charge of penetrative sexual assault on April 14.The statutory presumption applies when a person is prosecuted for committing offence under Sections 5 and 9 of the Act and a reverse burden is imposed on the accused to prove to the contrary.Where the person is prosecuted under Sections 5 and 9 of the Act, the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt.Evidence led by the prosecution to establish the primary facts suffer from inherent contradictions and patent improbabilities.
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