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| HC sets aside conviction of teacher in POCSO | | | Early Times Report
JAMMU, Feb 7: The Jammu & Kashmir and Ladakh High Court today set-aside the imprsisonment of 10 years to one Hardev Singh given by Principal Sessions Judge Rajouri. Justice Sanjeev Kumar observed that on re-evaluation of the evidence on record, this Court that the discrepancies and the contradictions appearing in the evidence of the prosecution are not normal but material discrepancies which have the effect of eroding the credibility of the prosecution case.
The trial court has not appreciated this aspect and has cursorily and mechanically accepted the prosecution version as narrated by the prosecution witnesses. The trial Court has even picked up the single lines from the statement of Ruksana Kousar, who has not supported the prosecution case at all, though she was claimed by the complainant and the child victim present on spot. Picking up of one line out of context is not permissible. The only statement of Kousar, that the appellant has restrained the victim while other students were allowed to leave the school, cannot lead to the conclusion that the victim was restrained for commission of the offence, the judge observed.
The judge observed that her statement is very specific and categoric that when the child victim came out of the class and accompanied her to home, she did not narrate to her anything with regard to the alleged occurrence. Court also found no substance in the contention of the Government counsel, that in view of provisions of Section 29 POCSO Act, it was for the appellant to rebut the presumption of guilt by leading cogent defence evidence. In this regard let me point out that presumption under Section 29 of POCSO Act is not absolute and it gets triggered only when prosecution is able to prove the foundational facts in the first place.
When we examine the prosecution evidence it clearly comes out that prosecution has miserably failed to establish foundational facts that may give rise to presumption of guilt of appellant who is accused of commission of offence under Section 9 and punishable under Section 10 of the POCSO Act. The foundational facts are required to be established by the prosecution by leading evidence beyond any reasonable doubt. The burden on the accused is not to rebut the presumption beyond reasonable doubt. It is sufficient for the accused if he is in a position to create a serious doubt about veracity of prosecution case, the judge observed.
Justice Sanjeev after hearing both the sides observed that the the major contradictions pointed out herein above, the prosecution case falls in the category where the appellant is at least entitled to the benefit of doubt. The major contradictions appearing in the statements of the prosecution witnesses and the slipshod manner in which the investigation has been conducted badly dents the credibility and reliability of the prosecution case and allowed the petition and set-aside the sentence awarded to petitioner. |
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