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High Court of Tripura at Agartala

Lalmalsom Kaipeng v. The State of Tripura

Crl. A (J) 34 of 2019 [MANU/TR/0211/2021]

Ratio Decidendi

The duty to rebut the presumption under Section 29 POCSO arising only after the prosecution has succeeded in establishing the foundational facts.The burden to rebut the presumption can be discharged by the accused through effective cross-examination, or by adducing defence evidence or by the accused himself tendering oral evidence. The presumption and the duty to rebut the presumption is co-extensive, i.e., the establishment of one led to the extinguishment of the other.

Case Notes

Facts

The accused kidnapped the victim, his niece, who was 8 years old, took her to a nearby jungle and raped her. The complaint was then lodged three days later at the police station by the victim’s father. The accused was convicted under Sections 376(2)(i)/506 IPC and Section 6 POCSO Act by the trial court and the accused appealed his conviction before the High Court on the ground that the charges had not been established as there were substantial improvements and exaggerations in the deposition of prosecution witnesses.

Judgment

The court acquitting the accused person held that presumption cannot be the sole reason for conviction. The court emphasized that despite statutory presumptions in cases of rape, the prosecution must first establish foundational facts beyond reasonable doubt. Only after this establishment does the burden shift to the accused to rebut the presumption under Section 29 of the POCSO Act. The prosecution can’t evade its duty by relying solely on these presumptions. The accused was permitted to garner evidence on his behalf through the prosecution witnesses and was not required to adduce evidence on his behalf to rebut the presumption under Section 29 POCSO. This rebuttal can occur through highlighting contradictions, demonstrating enmity, revealing witness unreliability, questioning delayed complaints, or proving the victim wasn’t a child. Methods to counter this presumption include effective cross-examination, presenting defence evidence, or the accused’s oral testimony. The Court observed that the yardstick for evaluating the rebuttable evidence was limited to the sale of preponderance of probability. Additionally, the presumption and the duty to rebut the presumption was co-extensive, i.e., the establishment of one led to the extinguishment of the other. It was further held that Foundational facts in the POCSO Act include -:

(i) the proof that the victim is a child;
(ii) that the alleged incident has taken place;
(iii) that the accused has committed the offence; and
(iv) Whenever physical injury is caused, establish it with supporting medical
evidence.