Whose burden, your honour?

From the Protection of Children from Sexual Offences Act, 2012: Sec. 29, Presumption as to certain offences: “Where a person is prosecuted for committing or abetting or attenuating to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”

The intention of the legislation as per Sec 29 of POCSO Act is clear that though the prosecution is not absolved of its responsibility to prove the case, the burden of proving the innocence is with the defence. Instead, in this case, the court repeated the same observation in all the judgments that the prosecution has “miserably failed to prove the case beyond reasonable doubt.”

Proof beyond reasonable doubt is something which is not applicable in the literal sense in POCSO cases. On reading Sec.29, it is evident that the court is bound to presume that the accused have committed the offence unless the accused prove that he is innocent. The court unfortunately treated this in the same manner as in IPC cases and depended on the prosecution depositions to find out that they are contradictory and unreliable. In fact, it is the accused who has to prove beyond reasonable doubt that he has not committed any offence as alleged. There is not even a whisper, through out any of the judgements, that any attempt was made by the accused to prove that they have not committed the crime. Nor the court has mentioning about arguments of accused regarding their proof of innocence.