Lacunae In Prosecution Case Due To Patent Contradictions Cannot Be Cured By Resorting To Statutory Presumption U/S 29 POCSO Act: Calcutta HC

The Calcutta High Court on Wednesday observed that lacunae in the prosecution case due to patent contradictions or inherent improbabilities cannot be cured by resorting to statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012. When the primary facts relating to time, place and circumstances constituting the offence are not prima facie established due to patent contradictions or inherent improbabilities, such lacuane cannot be cured by resorting to statutory presumptions in law" The Court further observed that in the instant case ingredients of the offence of aggravated penetrative sexual assault under Section 6 of the POCSO Act has not been established since the evidence of the minor suffers from patent contradictions with regards to her earlier statement to the magistrate vis-a-vis the time and place of occurrence as well as other inherent weaknesses. Accordingly, the Court acquitted the appellant by observing, "In order to attract the statutory presumption under Section 29 of the POCSO Act the factual foundations with regard to the ingredients of the offence under Section 6 of the said Act require to be established in the first place.in the light of the contradictory and inconsistent versions with regard to the allegation of rape levelled against the appellant, the factual foundations of the prosecution case has not been laid on the basis of preponderance of probabilities so as to attract the statutory presumption and the appellant is therefore entitled to an order of acquittal." Opining that the statutory presumption under Section 29 of the POCSO Act would not apply in the instant case due to the inherent weakness and patent contradictions in the prosecution case, the Court set aside the order of conviction and ordered for the release of the appellant from custody.