POCSO Act | Presumption Of Guilt Under S.29 Does Not Arise On Testimony Of Child Victim Alone If It Is Unreliable: Supreme Court

The Supreme Court recently held that the presumption of guilt under Section 29 of the Protection of Children from Sexual Offences Act, 2012 will arise only after the prosecution proves the basic facts of the alleged sexual assault, and cannot be applied if the victim child's testimony itself is not fully credible and trustworthy.

A bench of Justice Sanjay Kumar and Justice K Vinod Chandran set aside a judgment of the Calcutta High Court which had reversed the appellant's acquittal and convicted him under Section 8 of the POCSO Act. The Court restored the trial court's acquittal dated March 13, 2019.

“Unless the testimony of a victim child is found to be fully credible and trustworthy, the question of applying the presumption on the strength of such statement alone would not arise. The foundational fact of a sexual assault that would attract the presumption under Section 29 of the POCSO Act would require more than PW-1's statement which, on the face of it, was not credible as what she had stated to her mother was not borne out by her own statement before the trial court”, the Court stated.

The allegation against the appellant, a tuition teacher, was that on July 17, 2017, he sexually assaulted his 14-year-old student by touching her inappropriately after asking other students to leave. The prosecution examined ten witnesses. The child, examined as PW-1, stated that the incident took place at about 9.25 pm and that she informed her mother later that night, with the complaint being lodged the next evening.

In cross-examination, she stated that her mother did not consent to medical examination. She also said that other parents were present in the verandah and that the appellant's wife was in the kitchen at the time.

The mother, examined as PW-2, stated that the incident was disclosed on the same night but admitted that the complaint was lodged only the next day. She also admitted that she refused consent for medical examination and gave no explanation.

The mother stated that her daughter narrated the incident that the appellant had brushed his leg against the child's leg and also touched her chest and pressed her breast. However, when the child deposed before the trial court about eight months later, she did not state that the appellant had brushed his leg against hers. The Court treated this omission as a material discrepancy affecting the reliability of the testimony.

Another witness stated that she had taken her son for tuition on the same day and returned along with the victim's mother. The Supreme Court noted that this aspect was not challenged in cross-examination and treated it as admitted, indicating that another student may have been present at the time of the alleged incident, casting doubt on the victim's story.

The trial court had acquitted the appellant, citing unexplained delay in lodging the complaint, absence of medical examination, and failure of the prosecution to prove the case beyond reasonable doubt. The High Court reversed the acquittal by invoking the presumption under Section 29 of the POCSO Act.

The Supreme Court held that although the High Court correctly stated the law that the burden shifts to the accused once foundational facts are established, it failed to examine whether those foundational facts were proved in this case.

It noted that the delay of nearly a day in lodging the complaint assumed significance, particularly as the child's father was a member of the police force. The Court also held that the refusal to permit even a non-invasive medical examination, without explanation, warranted an adverse inference.

Holding that the child's testimony was not reliable and that the prosecution failed to establish the foundational facts of the alleged assault, the Court said that the presumption under Section 29 could not be invoked. It restored the trial court's judgment, holding that the High Court was not justified in reversing the acquittal.

Case no. – SLP(Crl.) No. 16838 of 2025

Case Title – Debraj Dutta v. State of West Bengal & Anr.

Citation : 2026 LiveLaw (SC) 401