POCSO Act | Foundational Facts Establishing Offence Must Be Proved To Trigger Statutory Presumption Under Section 29: Calcutta High Court

"Section 29 has got no direct and automatic application irrespective of the standard of evidence adduced in a particular case. Thus, without proof of foundational evidence in a case under the POCSO Act, the onus to prove the reverse burden of proof does not come into operation." Calcutta High Court affirmed the conviction of an appellant for aggravated penetrative sexual assault under the POCSO Act, 2012, while emphasizing that the statutory presumption of guilt under Section 29 is not an automatic trigger.

A bench comprising Justice Rajasekhar Mantha and Justice Anuj Singh observed that the prosecution must first establish the "foundational facts" of the offence through cogent and reliable evidence before the burden of proof shifts to the accused to rebut the presumption.

The appellant was convicted by the Special POCSO Court in 2019 for repeatedly sexually assaulting a minor girl, aged approximately 11 years, between December 2015 and March 2016. The prosecution alleged that the appellant, a family acquaintance with free access to the victim's home, coerced the child into silence through threats of killing her younger brother. Challenging the conviction, the appellant argued that the victim’s testimony was inconsistent, the delay in filing the FIR was fatal, and the prosecution failed to prove the foundational facts necessary to invoke the Section 29 presumption.

The court was primarily tasked with determining whether the prosecution had successfully established the foundational facts required to shift the burden of proof under Section 29 of the POCSO Act. It further addressed whether the material contradictions in the victim's testimony and the delay in lodging the FIR were sufficient to discredit the prosecution's case or render the presumption inapplicable.

Requirement of Foundational Facts

The court held that the presumption under Section 29 is not a blanket rule applicable the moment a case is registered. The prosecution is mandated to prove the identity of the accused, the age of the victim, and the commission of the act itself through independent, credible evidence. Only once these elements are satisfied does the "reverse burden" shift to the accused.

"Sterling Witness" Doctrine in POCSO Cases

Regarding the reliability of the minor victim, the court rejected the contention that her testimony was unreliable due to minor discrepancies. Applying the "sterling witness" standard, the bench noted that the victim's account remained consistent on the core allegations—the identity of the perpetrator, the act of penetration, and the intimidation used. The court cautioned against viewing a child victim's evidence with suspicion, noting that human memory, especially in the context of repeated trauma, cannot be expected to yield a "photographic reproduction" of events.

No Absolute Right to Corroboration

The bench reiterated that corroboration of a victim's testimony is not a sine qua non for conviction in sexual offence cases. If the court finds the testimony to be worthy of credence, it can form the sole basis for conviction. The court observed that insistence on absolute corroboration from other witnesses or medical reports—particularly when the examination is delayed—would be tantamount to "adding insult to injury" for the survivor.

Delay in FIR Not Fatal

Addressing the delay in lodging the FIR, the court ruled that cases of sexual assault cannot be equated with other criminal offences. Factors such as societal stigma, the victim's fear, and threats of further violence create legitimate barriers that courts must weigh before dismissing a complaint on the grounds of delay. Here, the victim’s explanation of being intimidated by the appellant, a known visitor to the household, was deemed sufficient to justify the timeline.

Modification of Sentence

While affirming the conviction, the bench exercised judicial discretion to modify the 15-year sentence imposed by the trial court. Considering the appellant’s clean criminal record, his satisfactory conduct in prison, and the period of over 10 years already spent in custody, the court reduced the sentence to 13 years and 6 months.

Enhanced Compensation and Privacy

The court further directed an enhancement of victim compensation to Rs. 4,50,000, noting that the trial court had failed to apply the 50% increase mandated for victims below 14 years under the West Bengal Victim Compensation Scheme. Furthermore, the bench expressed "anguish and disappointment" that the trial court had failed to redact the victim's identity in the lower court records, reiterating that such failure is a direct violation of Section 33(7) of the POCSO Act.

Date of Decision: 24 September 2026