Three years after the stringent Protection of Children from Sexual Offences Act (Pocso) was enacted, the Bombay high court has questioned the wide scope of “presumption of guilt” of an accused in the special law.Judge Abhay Thipsay made the observation as an aside while upholding the threeyear prison term given to a Pune resident Yuvraj Maral for molesting his daughter’s minor friend.
“While appreciating evidence in cases under the Pocso Act, the presumption contained in Section 29 thereof, needs to be kept in mind. The terms of the said section are very wide and a plain reading thereof indicates the said provision to be contrary to the basic and normal principles of criminal jurisprudence,” said Justice Thipsay, but hastened to add that the case before the court was not the right one to go into the issue. “The ambit and scope of the presumption enacted by Section 29 and its true meaning would certainly need a detailed discussion in an appropriate case, but the same is quite unnecessary in the present one.”
Pocso was enacted in 2012 to protect children from sexual abuse. The law brings under its purview different forms of sexual abuse, including sexual assault, molestation, sexual harassment and pornography.
Section 29 of Pocso says that “Where a person is prosecuted for committing or abetting or attempting to commit any offence under (this law) , the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved”.
India’s criminal laws say there is a “presumption of innocence” -courts have to consider that an accused is innocent till the prosecution is able to prove with evidence beyond reasonable doubt that he has committed the offence. The concept of “presumption of guilt”, on the other hand, considers the accused as having committed the offence. The accused has to prove in such cases that he is innocent.
In the present case, Maral was arrested in May 2013, after the minor girl who used to stay next door, complained to her family. A sessions court in 2014 held Maral guilty and sentenced him to three years’ rigorous imprisonment. Maral challenged the verdict. The HC dismissed the appeal and said that the statements of the minor girl as well as other witnesses could be relied upon to prove the accused’s guilt.