Document Fragment View
Fragment Information
Showing contexts for: pocso act in Sri G S Venkatesh vs The State Of Karnataka on 25 February, 2020Matching Fragments
(iv) application of mouth to the penis, vagina, anus, urethra of the child.
17. The difference discernable from these provisions is that, in a prosecution for the offence under section 375 IPC, in addition to the above common ingredients, the prosecution has to further prove the seven circumstances enumerated in section 375 IPC, namely, the absence of will and consent by the victim etc., whereas, in an offence under section (4) of the POCSO Act, the prosecution is relieved of establishing these circumstances. On the other hand, the prosecution is aided with the presumptions provided under sections 29 and 30 of the POCSO Act. Nevertheless, in order to make out the offence either under section 375 IPC or under section 4 of the POCSO Act, prosecution must necessarily prove the basic ingredients namely penetration, insertion, manipulation or application of the mouth to the penis, vagina, anus, urethra of the child. Penetration, insertion, manipulation or application of mouth therefore is a sine qua non to constitute the offences either under section 375 IPC or section 4 of the POCSO Act.
SPECIAL PROCEDURE UNDER THE POCSO ACT:
30. The POCSO Act has devised special procedure for recording evidence in a criminal trial for the offences under the POCSO Act. Chapter VIII of the POCSO Act prescribes the procedure for recording the evidence and the powers of Special Courts. I do not find it necessary to extract these provisions as they are required to be followed by the Special Court without any excuse. However, it needs to be emphasized that under the Act, it is mandatory for the Special Court to record entire evidence of the child within thirty days from the date of taking cognizance of the offence and conclude the trial within a period of one year from the date of taking cognizance of the offence. Section 36 of the Act requires the Special Court to ensure that the child is not exposed to the accused and the trial under the Act will have to be held in camera. The Special Court is also empowered to record the evidence of the child in any place other than the court after forming a prior opinion to this effect as per section 284 of Cr.P.C. The Special Court has the power to take the assistance of interpreter or expert while recording the evidence of the child. As the provisions of Cr.P.C. are made applicable to the proceedings under the Act, the Special Court is also required to record the demeanor of the witnesses and it is always desirable that the Presiding Officer makes a record of his opinion that the child examined by him was in a position to understand the duty of speaking the truth.
35. That apart, the evidence of PW.5, even if believed, would not establish the fact that during the occurrence, there was any penetration or insertion or manipulation of her private parts so as to render the accused guilty of the offence of penetrative sexual assault punishable under section 4 of the POCSO Act or for the offence of rape punishable under section 376 of IPC. This evidence in my view at the most would make out the ingredients of the offence of "sexual assault" as defined under section 7 of POCSO Act and therefore, on ultimate analysis of the entire material on record, I am of the view that based on the evidence produced by the prosecution, the accused is liable to be convicted for the minor offence under section 7 punishable under section 8 of the POCSO Act.
The question of discharging the reverse burden by the accused would arise only when the initial burden cast on the prosecution is discharged to the satisfaction of the court. Therefore it follows that without the proof of basic facts constituting the offence charged against the accused, the accused cannot be called upon to disprove the case of the prosecution.
39. In the instant case, as the prosecution has failed to establish the basic facts constituting the ingredients of the offence charged against the accused, the presumption created under section 29 of the POCSO Act cannot be invoked by the prosecution. For the same reason, the culpable mental state including the intention, motive or knowledge of the alleged offence cannot be imputed to the accused merely on the basis of the presumption under section 30 of the POCSO Act. It is only when the prosecution proves the basic facts constituting the offence charged against the accused, the prosecution is relieved of establishing the culpable mental state of the accused like the intention, motive and knowledge, by virtue of the presumption engrafted in section 30 of the POCSO Act. That being the legal position, the presumptions provided under sections 29 and 30 of the Act is of no avail to the prosecution to sustain the impugned judgment insofar as the conviction of the accused for the offences punishable under section 376 of IPC and section 4 of the POCSO Act is concerned.