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Presumption Under Section 29 POSCO Act does not Affect the Obligation of Prosecution to Produce Admissible Evidence to Prove and Foundational Facts
Presumption Under Section 29 POSCO Act does not Affect the Obligation of Prosecution to Produce Admissible Evidence to Prove and Foundational Facts
Section 29 of the Protection of Children from Sexual Offence Act 2012, says where a person is prosecuted for committing or abetting or attempting to commit any offense under section 3,5,7,8 and 9 of this act the Special Court shall presume, that such person has committed or abetted or attempted to commit the offense, as the case may be unless the contrary is proved.
The Kerala High Court has observed that the presumptions under section 29 of the Protection of Children from Sexual Offences Act, 2012 does not affect the obligation of the prosecution to produce admissible to prove the essential and foundational facts. When the defendant gives the acceptable proofs to prove the facts of the offense the accused must prove that he did not commit the offense on the belief of mass of chance. The presumption of innocence cannot be associated in itself with the constitutional right to life and personal liberty given in article 21 if the Indian Constitution.
Justice P.B Suresh Kumar added that- Section 29 of the POSCO act does not forgive the prosecution from the said responsibility and if evidence for proceeding against the accused is not made available the accused is entitled to be discharged. The prosecution would fail even if the accused person did not submit the evidence or if the evidence submitted by the prosecution is not proved the guilt of the prosecution. But under section 29 of the POSCO act if the prosecution submits evidence to prove the offenses it will be then supposed that the accused is guilty. In other words, to make the accused guilty all the burden lies upon the prosecution.
Assumptions are rules of evidence and do not conflict with the presumption of innocence of the accused, for, the burden, on the prosecution, to prove its case beyond all reasonable doubt remains integral. When the facts give rise to beliefs the defendant shall be taken to have cleared its obligation to prove its case beyond a reasonable doubt. In such case duty shifts to the accused to prove the contrary. Presumptions are not evidence but rules of evidence. Presumptions are often to fill a gap in proofs.
Conclusion
The necessity of presumptions is used to take care of the child who has limited capabilities, to lighten the burden and vulnerabilities of an already vulnerable child, to ensure proper and smooth application of the act, to achieve its object of protection of children. Making known of the evidence on record, the court observed has submitted evidence to prove all the initial facts to establish the guilt of the accused in this case and that the accused has failed to prove his innocence on the principle of the Majority of probability. The court also added that the burden of proving the accused guilty is in the hands of the prosecution and they should submit the evidence which should be true and justifying if not than the accused will be discharged or the accused person should submit evidence in return to prove himself innocent.
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