Punjab & Haryana HC sets aside rape conviction

The Punjab and Haryana High Court has acquitted two men in a case of sexual assault under the Protection of Children from Sexual Offenses Act (POCSO), observing that the presumption under Section 29 for abetment or attempt to commit certain offenses under the Act cannot be based on the lack of evidence.

Under Section 29 of the POCSO Act, where a person is prosecuted for committing or aiding or abetting the commission of any offense under sections 3 (Penetrative sexual assault), 5 (Aggravated penetrative sexual assault), 7 (Sexual Assault) and section 9 (Aggravated Sexual Assault) of this Act, the Special Court shall presume that the person committed, a encouraged or attempted to commit the crime, as the case may be, unless the contrary is proven.

A division bank of Justice Sanjeev Prakash Sharma and Justice Sanjay Vashith said, “The alleged guilt of the appellants is not proved beyond reasonable doubt. Even in the absence of incomplete evidence, the presumption under Section 29 of the POCSO Act would not be applicable.”

The court also said that the allegations were leveled only by the girl, which required a deeper examination.

The FIR alleged that the minor girl – who was said to be 13 at the time – was kidnapped in 2018 and upon recovery, she stated that she was raped by another accused in 2017. The Municipal Court sentenced one in in accordance with Section 4 of the POCSO Act. for 20 years; Sections 363 (kidnapping), 366 (kidnapping, abducting or causing a woman to force her marriage etc.) IPC and another under Section 6 (Punishment for sexual assault with aggravated penetration) POCSO Act for 20 years.

After examining the submissions, the Court found that the case for criminal prosecution is doubtful; held that in the girl’s statement she gave a new version before the Court, which did not support the prosecution’s story.

“The victim nowhere states anything about her recovery from the spot which is narrated by the official witnesses of the investigation team, this court does not hesitate to hold that because of the false deposition and more for the convenience of the police, the story of the recovery. of the victim is most likely developed by the police on their own and therefore the recovery of the victim as projected by the prosecuting agency appears to be completely bogus“, he added.

The bench pointed out that the prosecution witnesses are all materially contradicting each other and therefore opined:that the recovery of the victim as projected by the investigating agency is completely bogus.”

The Division Bench concluded that “from the medical evidence coupled with other circumstances available in the record, it appears that there is incomplete medical evidence and the accusation of committing the sexual act with the victim is not fully proven..”

He also pointed out that during the cross-examination, the investigating officer made it clear that no investigation was conducted regarding the abduction of the girl by the accused from the people residing near the place of occurrence.

Citing the medical record, the Court specified that “From the medical evidence coupled with other circumstances available in the record, it appears that there is incomplete medical evidence, and the accusation of committing the sexual act with the victim is not fully proven..”

As far as the rape was committed in 2017, the Court said that no evidence was recorded and even the date of the alleged incident was not stated by the girl.

Trust was placed on Rakesh Vs. State of Haryanain which the High Court held that statutory presumption under Section 29 applies when a person is prosecuted for an offense under Sections 5 and 9 of the POCSO Act and reverse onus is placed on the accused to prove the contrary. The Court also held that this does not mean that the prosecution does not have a rule to establish the primary facts that constitute the crime.

In overturning the conviction, the Court found that “the investigation was not conducted properly and the investigating officer failed in his duty to collect all the evidence.” Next, the court ordered that the accused be released immediately and admitted the appeals.

Title of the case: Virender v. State of Haryana and another appeal

Mr. RN Lohan, attorney for the appellant (in CRA-D-7-2022).

Mr. Vivek Suri, counsel for the appellant (in CRA-D-8-2022).

Mr. Apoorv Garg, Sr. DAG-cum Public Prosecutor, Haryana.

Reference: 2024 LiveLaw (PH) 427

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