Hrishikesh Sahoo Vs State of Karnataka and Ors on 23 Mar 2022
Citations :
Other Sources :
Tag: POCSO Act Sec 29 – Burden of Proof on Accused
Asharam@Ashumal Vs The State of Rajasthan and Ors on 12 Apr 2014
A academic query was posed to the High Court in these batch of Revisions as follows.
The thrust of the accused-petitioners in their arguments is to the effect that if charges under POCSO Act, 2012 do not survive then the case from the Special Court ( Sessions Judge, Jodhpur District, Jodhpur, who is trying the cases of POCSO Act, 2012) may be transferred to the regular Sessions Court where presumption under Sections 29 and 30 of POCSO Act, 2012 will not be available against the petitioner and the accused-petitioners will be benefited accordingly.
And then after perusing provisions of POCSO Act, Juvenile Justice Act, IPC, the Court observed and ordered as follows:
It has been argued on behalf of accused Asharam@Ashumal that at the most his conduct may come within the definition of attempted fellatio and he cannot be charged for the offence of fellatio. The conduct of the accused asking the girl to suck his organ is called fellatio. Had the girl started sucking his organ, it would have been argued that it was her consensual act. Certainly the charge of attempt to fellatio is graver offence than the fellatio itself. So, the charge even if it relates to fellatio, it will cover the charge of attempted fellatio and the accused is not going to be prejudiced when the charge of fellatio has been framed against him in place of attempted fellatio. Some times the prosecutrix, who is a minor girl may hesitate to tell complete truth before the Investigating Officer and many a times it happens in such type of cases that the prosecutrix unfolds the complete truth only during the camera trial when she is assured that nobody will be able to cause any harm to her because of her statement. Hon’ble the Supreme Court has mandated that in cases of Section 304 B IPC, a charge of Section 302 IPC should also be framed against the accused and on the same logic, this Court hereby directs all the trial courts in Rajasthan that in all cases of attempt to commit rape, a charge for the offence of rape should also be framed against the accused so that, at the stage of conclusion of the trial, the Court may not have to undertake tedious process of amendment of charge and recalling the witnesses causing serious prejudice to the cause of justice in such cases.
Asharam@Ashumal Vs The State of Rajasthan and Ors on 12 Apr 2014
Citations : [2014 SCC ONLINE RAJ 1812], [2014 RLW 3 2596], [2014 WLC 4 481]
Other Sources :
https://indiankanoon.org/doc/83475160/
https://www.casemine.com/judgement/in/56ea742f607dba36cc74581c
Amol Barsagade Vs State of Maharashtra on 23 Apr 2018
Single Judge of Bombay High Court held that, burden of proof shifting to accused in POCSO cases is not absolute and that the Prosecution has to establish their case on foundational
facts, only after which burden of proof shifts onto accused.
From Para 4, truth comes out.
4. It is admitted by the victim that Hindi books were found on her desk by the accused. The victim was suggested that since the Hindi books were found or discovered by the accused, she left the examination hall crying. The defence, obviously, is that in order to escape the consequences of the unfair practice while answering the Hindi paper, the victim falsely implicated the accused.
From Para 6,
Amol Barsagade Vs State of Maharashtra on 23 Apr 20186. The statutory presumption under Section 29 of the POCSO Act must be understood and tested on the anvil of the golden thread which runs through web of the criminal jurisprudence system in this country that an accused is presumed to be innocent till the guilt is conclusively established beyond reasonable doubt. In the factual matrix, at best, the prosecution has succeeded in bringing on record material giving rise to some suspicion. However, it is trite law that suspicion is not a substitute to proof. The gulf between “might have committed” and “must have committed” must be bridged by the prosecution by unimpeachable and confidence inspiring evidence.
Citations :
Other Sources :
https://indiankanoon.org/doc/186788466/
