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by Admin
19 February 2026 3:14 PM
“Statutory Presumption Under Section 29 POCSO Does Not Arise in a Vacuum — Foundational Facts Must Be Proven First”: In a judgment that sharply critiques both prosecutorial conduct and procedural compliance, the Calcutta High Court on 25th September 2025 acquitted Rasomoy Biswas, previously convicted under Section 8 of the Protection of Children from Sexual Offences Act, 2012, after finding that the prosecution had failed to prove even the foundational facts necessary to attract the statutory presumption of guilt.
Justice Prasenjit Biswas emphasized that the protection extended to child victims under the POCSO Act must be balanced against the constitutional guarantee of fair trial, holding that “presumptions under Section 29 are not absolute but conditional — they arise only once the foundational facts of the prosecution case are credibly established.”
The Court concluded that in this case, not only were the foundational facts “fraught with contradictions, omissions, and influenced testimony”, but the conduct of the prosecution demonstrated “clear procedural lapses, suppression of material evidence, and a failure to inspire judicial confidence.”
“Conviction Cannot Be Founded on Coached and Contradictory Testimony”: Victim’s Admission of Tutoring Destroys Credibility
The fulcrum of the prosecution’s case was the sole testimony of the minor victim. The trial court had convicted Rasomoy Biswas relying primarily on her deposition under Section 164 CrPC. However, the High Court found this approach deeply flawed. Justice Biswas observed:
“The prosecutrix, in cross-examination, categorically admitted that she was tutored by her mother and other relatives before giving her statement in court and before the Magistrate. Such an admission goes to the root of the matter.”
He added that “in the absence of independent corroboration, such a coached testimony is inherently unreliable and legally unsafe to form the sole basis of conviction.”
The Court held that the evidentiary sanctity of the victim’s statement was irreparably compromised due to this coaching, and the repeated contradictions across her multiple statements made under Section 161 CrPC, Section 164 CrPC, and before the doctor further diminished its probative value.
“Independent Witnesses Deny Prosecution’s Version — When Key Links Are Broken, Chain of Circumstances Collapses”
In a damning observation, the Court noted that independent witnesses PW4 and PW5, who were allegedly present during the lead-up to the incident, completely disowned the prosecution story, and were not declared hostile by the prosecution.
“PW4 and PW5 did not support the most material link in the chain of circumstances. Their refusal to corroborate the victim’s version is fatal to the prosecution, especially when the conviction is based solely on the victim’s statement,” the Court noted.
Similarly, PW9, another independent witness, also denied knowledge of the incident and was never declared hostile. The Court drew a significant inference from this lapse:
“Failure to declare a prosecution witness hostile after disowning the case amounts to implicit acceptance of their version. The prosecution cannot cherry-pick support and ignore contradictions.”
“Unexplained Delay in FIR and Forwarding to Magistrate Undermines Prosecution’s Credibility”
Justice Biswas expressed serious concern over the delay in both filing and forwarding the FIR:
“The FIR was lodged more than 24 hours after the incident, with no satisfactory explanation offered. Worse still, the forwarding of the FIR to the Magistrate took another two days. Such delays, when left unexplained, vitiate the spontaneity and credibility of the complaint.”
Relying on Bijoy Singh v. State of Bihar, the Court held that unexplained delay in setting the criminal law in motion invites suspicion of deliberation and possible embellishment, especially when coupled with local settlement attempts before filing the FIR.
The Court observed: “The initial conduct of the complainant family—seeking mediation and compromise with the accused’s family—suggests that criminal proceedings were a second thought, not a spontaneous reaction to a grave offence.”
“Presumption Under Section 29 POCSO Is Not a Weapon of Conviction Without Evidence — Foundational Facts Must Be Established”
Reiterating fundamental principles of criminal jurisprudence, the Court underscored the conditional and rebuttable nature of the statutory presumption under Section 29 of the POCSO Act.
Justice Biswas held: “A statutory presumption cannot arise in a vacuum. It is only after the prosecution establishes foundational facts — the occurrence, identity of the accused, and surrounding circumstances — that the burden shifts to the accused.”
He cited Sahid Hossain Biswas v. State of West Bengal to reiterate:
“The presumption under Section 29 is procedural and cannot override substantive evidence. Courts must not treat it as gospel truth, especially when prosecution evidence is riddled with inconsistencies and coaching.”
In the present case, the prosecution’s inability to prove foundational facts — such as the identity of the accused at the scene, sequence of events, and absence of corroboration — meant the presumption was never triggered.
“Medical Evidence Withheld Despite Victim Alleging Physical Struggle — Adverse Inference Invoked”
One of the most damning findings was the withholding of the appellant’s medical examination report, despite the victim claiming she bit the appellant during the assault.
Justice Biswas noted:
“Despite the availability of a medical report of the accused’s examination, it was never produced. This is not a trivial lapse — it is a conscious suppression of the best possible evidence.”
Citing Section 114(g) of the Indian Evidence Act, the Court held that the prosecution’s failure to produce the report invited an adverse inference — that the report, if exhibited, would not have supported their case.
“The prosecution cannot selectively present evidence. Withholding such a vital piece of scientific corroboration undermines the credibility of the case and entitles the accused to the benefit of doubt,” the judgment declared.
“Contradictions in Testimony of Victim’s Family on Earliest Disclosure — Foundation of Prosecution’s Story Shaken”
The Court dissected multiple contradictions between PW2 (grandfather), PW6 (grandmother), and PW8 (mother), all of whom claimed to be the first recipient of the victim’s disclosure. These inconsistencies, the Court held, go to the heart of the prosecution’s version.
“When three close family members give three irreconcilable versions of who first heard the victim’s account, it is not a minor contradiction but a material infirmity,” the Court observed.
Further, PW2’s own version admitted that there were attempts at local settlement and only after a dispute escalated did they approach the police.
“This sequence of events, narrated by the prosecution’s own witnesses, supports the defence argument that the FIR was an afterthought,” the Court held.
“Trial Court’s Failure to Comply With Section 313 CrPC Vitiated the Accused’s Right to Defence”
Finally, the Court found serious procedural irregularity in the accused’s examination under Section 313 CrPC, observing:
“The questions put to the accused were long, jumbled, and failed to clearly present each incriminating circumstance separately. This reduces the statutory right to an empty formality.”
Such defective examination, according to the Court, “prejudiced the accused’s defence and is sufficient to vitiate the trial.”
“When Prosecution Evidence is Unreliable, Contradictory, and Withheld — Acquittal Is the Only Judicially Sound Course”
Summing up the case, the Court held that the cumulative effect of coached testimony, contradictions, procedural lapses, and suppression of evidence left the prosecution case hopelessly weak and unsafe for conviction.
“Suspicion, however strong, cannot take the place of legal proof. The benefit of doubt must necessarily enure to the accused,” the Court declared.
Accordingly, the High Court allowed the appeal, set aside the conviction and sentence, and directed that the appellant be released from bail, subject to the execution of bond under Section 437A CrPC.
Date of Decision: 25 September 2025
