Lack of evidence: HC acquits man in Pocso case
The court, while setting aside the order of the Bhopal POCSO court, said that under sections 29 and 30 of the POCSO Act, the 'burden of proof' can't be entirely shifted onto the accused in POCSO cases.
According to the prosecution, the wife of the accused, in her report lodged with the police, said that she went to the bathroom, and when she came back, she saw her husband sexually assaulting their daughter. She took her daughter to a doctor the next day, who found the private part of the baby reddish.
She informed him of what she saw her husband doing to the baby the previous day. The doctor advised her to seek help from the Child Helpline.
She subsequently reported the matter to the police.
In the medical examination of the girl, rashes were found on her private part, its peripheral area, and the waist. The doctors opined that the marks were not created by diapers, paper napkins, or things like that. Samples of the accused's nails and fingers were sent for FSL examination, but they didn't match the samples of his daughter.
Hearing the criminal revision petition of the father, the bench of Justice Vivek Agarwal and Justice D N Mishra said that sections 29 and 30 (2) of the POCSO Act don't absolve the prosecution from the 'burden of proof' as specified under sections 101 and 102 of the Evidence Act. An accused would carry the burden to prove himself innocent only if the prosecution is able to establish the charge against him prima facie "by adhering to the standard of proof of preponderance of probability.
It's only then that the accused has to displace the presumption of guilt," the judges said.
The division bench said that witnesses in the case have stated that the wife of the accused, who is the complainant in the case, told them about the incident. The statements of the wife recorded under sections 161 and 164 of the CrPC and her statement in the court are contradictory. The prosecution has failed to prove the charge of sexual assault on the accused, and he is entitled to be given the benefit of the doubt, said the court while setting aside the POCSO court order.
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