Section 29 of THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
Original Text
29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting 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.
Visual Summary
Applicable Sections
Applies only to offences under Sections 3, 5, 7, and 9 (Sexual Assault & Penetrative Sexual Assault).
Mandatory Presumption
The Special Court shall presume the accused is guilty once prosecution is initiated.
Reverse Burden
The burden of proof shifts to the accused to prove their innocence.
Summary
Section 29 introduces a significant legal concept known as the “Reverse Burden of Proof” or “Presumption of Guilt.” In general criminal law, an accused person is presumed innocent until proven guilty. However, the POCSO Act changes this rule for specific serious offences.
Under this section, if a person is prosecuted for Penetrative Sexual Assault (Sec 3), Aggravated Penetrative Sexual Assault (Sec 5), Sexual Assault (Sec 7), or Aggravated Sexual Assault (Sec 9), the Special Court is legally required to assume that the accused committed the crime.
This means the responsibility shifts to the accused to provide evidence proving that they did not commit the offence. If the accused fails to prove their innocence (“unless the contrary is proved”), the court will convict them based on this presumption.
Key Takeaways
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Specific Application: This presumption applies only to Sections 3, 5, 7, and 9. It does not apply to Sexual Harassment (Sec 11) or Pornography offences (Sec 13-15).
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Mandatory Nature: The Act uses the word “shall presume,” meaning the judge has no discretion; they must start with the assumption of guilt once foundational facts are laid.
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Rebuttable Presumption: The presumption is not absolute. The accused has the right to lead evidence to prove the contrary (that they are innocent).
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Includes Abetment and Attempt: The presumption applies not just to the act itself, but also to abetment (helping commit the crime) and attempts to commit it.
Process Flowchart
Practice Questions
Q1. Section 29 of the POCSO Act creates a presumption of guilt for offences under which sections?
- A. Sections 11 and 12 only
- B. Sections 3, 5, 7, and 9
- C. All sections of the POCSO Act
- D. Only Section 3
Show Answer
Correct Answer: B. Section 29 specifically lists Sections 3, 5, 7, and 9 (Penetrative Sexual Assault and Sexual Assault, including aggravated forms).
Q2. The presumption under Section 29 is:
- A. Conclusive proof (cannot be challenged)
- B. Discretionary (Judge may or may not presume)
- C. Rebuttable (Accused can prove contrary)
- D. Irrelevant to the trial
Show Answer
Correct Answer: C. The text states “unless the contrary is proved,” making it a rebuttable presumption.
Related Provisions
Conclusion
Section 29 is a cornerstone of the POCSO Act’s victim-centric approach. By shifting the burden of proof to the accused, the law acknowledges the difficulty children face in testifying and the often private nature of sexual offences. It ensures that once the prosecution establishes that an act occurred, the legal system prioritizes the child’s protection by requiring the accused to affirmatively prove their innocence, rather than relying solely on the prosecution to prove every element of intent.