 And since if I recollect on a common platform, we had Justice Roshan Dalmi, Justice Shashi Gurukur, and Justice Shalini Finsarkar. Therefore, when it transpired that Justice Roshan Dalmi has written the book, which is already doing well, that is decoding the child sexual abuse. We thought that why not have insights and peep into one of the takes given in that book? And since Justice Roshan Dalmi, and they have been pivotal in building up beyond law CLC, I requested Justice Roshan Dalmi at a late time that ma'am kindly give some introduction, though Justice Shalini as such doesn't require any introduction. And as they say that in Hindi, they say, ek aur ek yara, and we thought that when two minds were thinking on the same page, why not bring them? And that too, not on the page, but on the book, Justice Shalini has written on decoding of the child sexual abuse. I'll ask Justice Roshan Dalmi to say a few words, then we'll ask Justice Shalini to give the insights of every entry, standards, and box rate, which is slightly different from the other criminal jurisprudence. Or do you, Justice Roshan Dalmi? And I meant by the fact that you have accepted, even at a late budget, you agreed upon. Over to you ma'am. Okay, good evening, friends. Good evening, Vikas, Shalini, and everyone. It is such a pleasure, it's a delight, really, to be with Shalini. We have worked together for the last so many years on this subject, the subject of gender as such. And this component of gender is Shalini's speciality. I'll just call her Shalini and nothing else. She is within a magnum opus on decoding child sexual abuse. And friends, you may be judges, lawyers, and law students, but decoding child sexual abuse is for everyone in our society, more specially you. And when you're going to deal with any of these cases of whom we call vulnerable witnesses, children are the most vulnerable of them all. And please always remember our constitution, the only constitution in the world which makes laws in favor of women and children. And this is one law in favor of children. This was long overdue. It was in so many countries that such a law had come. We were working on this law, Shalini as well as I, as session judges without that law. We were making it and we were trying to bring it into fruition. That was the time when Justice Shalini Joshi had written her thesis on this subject. That thesis ultimately became the book that you are now going to hear about. And it is her day. Whatever is in the book, it must come out of her. Only suffice to say it should be a Bible for anyone who practices in that sector. Thank you, friends, and over to Shalini. Ma'am, I will just request Justice Shalini to just show the cover of the book. Slightly close the mic. Up, up, up. And you will have to speak because then it's on the speaker view, Ma'am. Justice Shalini, the book. Yeah, thank you. Thank you so much. Thank you so much, Justice Roshan Dalwit. It is such a pleasure to see you and to be with you in this session because we have, as you have rightly said, work on this together in that way. And thank you, Vikas Jal, so for providing this platform, for holding the session on such an important topic of evidentiary standards in postcode cases. Because postcode cases are having its own peculiarities. Postcode act itself deals with sexual abuse of the children, which is really the most traumatic, the most painful of all the offenses which are committed maybe against another human being and especially when such offenses are committed against the children who are vulnerable. Their, the cause of their vulnerability is their innocence. It is their innocence which becomes their burden, their baggage. Not only because of their innocence, they become victims of abuse and that too of sexual abuse, but that innocence also makes them vulnerable throughout the entire process of getting the justice. Maybe it is an investigation, maybe at the trial or maybe thereafter also. And therefore it is very important to understand the trauma which the child faces in such offenses. Naturally, these offenses are required to be treated differently as they are committed against the most vulnerable class of society. And another reason for treating these offenses differently and applying different evidentiary standards is that the child has to face two equations in our society, in our legal system. The first equation is child versus adult. Our entire criminal system, justice system or maybe even civil justice system is adult oriented. It has no place as such for a child to come either as a witness or as a victim. The court, anyone who has seen the court structure will know that it is a very formal structure where the judge is sitting on high pedestal, whereas the witnesses are in the witness box, accused behind the defense counsel, public prosecutor, so many court staff. So it is a structure full with adult persons. And the child is for the first time coming face to face with this formal court structure. All our laws are also designed and implemented towards the adult, I mean, keeping adult in focus. Naturally, this equation is putting the child at unequal position. Another equation which the child has to face when it comes in the criminal justice system to seek justice, and that is as a victim, is child is victim versus accused equation. Because just like our criminal justice system is accused oriented, similarly, our justice system is adult oriented and accused oriented. All our laws are enacted to ensure that there is that the rights of the accused are protected to utmost security. Our constitution speaks of the rights of the accused and our CRPC was totally silent until the word definition of victim was introduced in the year 2009 and director, we are talking of the rights of the victims. Naturally, in such a system, which is inherently unequal because of the two equations, being the same premise of equality or the evidence act which is applicable is bound to I'm going to result in some sort of injustice to the child. And therefore it was thought that just a child in conflict with law requires different treatment in the trial process, investigation process, in disposition of such cases also similarly, when child comes as a victim, the child requires a special law, a special treatment, a special statute. And along with the statute and along with the child friendly procedures for recording the evidence of the child, it is felt that here the evidentiary standards are also required to be somewhat different. And the main cause for the same was naturally again the vulnerability of the child, the age of the child, which is so young, so innocent, hardly aware of his own anatomy, own bodily, own body of parts. And in such a case, when child has to give evidence of the sexual offense that it is just impossible for a child to put in words what has actually happened, especially when child sexual abuse takes place in the privacy and secrecy, there can be no eyewitness to such incident. The only person who can depose about the same is the child. Whatever evidence of other witnesses at the most will be only collaborative or circumstantial. But the testimony of the child is the foundation or the sole piece of evidence on which the entire prosecution case is required to be tested. And so far a child is concerned, the child is just impossible for the child to state everything that has happened. These offenses are also of such a serious nature, but they are committed by the own family members or someone known to the child. The peculiarity of child sexual abuse is that the accused in such cases or the offender is not someone unknown, stranger to the child, but someone from the family itself, someone from the acquaintance, someone from the school, someone from the places which the child knows very well, such persons who are like ordinary, normal persons, but who commit such sexual abuse and when the child has to give evidence against such a person who is a family member, maybe a father, brother, cousin, uncle, or maybe a school teacher, sports teacher, rickshaw uncle, or maybe a neighbor or someone family friend, then it is another ordeal for the child to give evidence. And that's why reporting for recording of evidence and the postal act you have incorporated. I mean, legislature has incorporated several innovative provisions considering the ordeal which the child faces in recording of the evidence and which I have described in detail. And here I would really like to read from my book because that will explain all the exact words. I mean, at page number 184, because I had the occasion to record and conduct the cases of child sexual abuse. I have conducted several of such cases and I'm really the witness to the trauma faced by the children when they come to give evidence before the court. And here I quote from my book, it becomes really an ordeal for the child to put in exact words what has happened to find correct words for such an inarticulate child whose vocabulary is limited becomes a difficult task. The child does not know sexual organs of her own or the pain of the sexual organs of the accused. How she is to state that accused has put his penis in her private part, touched her or kissed her. Her evidence that accused has done some dirty things to her is not sufficient. The accused and his counsel want to know what is a concept or notion of dirty things. After all, life of the accused depends on her testimony. Near kissing or touching private part may amount to, from her perspective, a dirty things. But it is not an offense of rape. So they keep on probing further. Whether accused has removed her frock, whether he removed her under clothes, whose clothes were removed first, whether he fell her on ground, whether he kept her on lap, whether he inserted his finger, object or private part, whether there was bleeding, discharge, emission, whether she shouted, whether she resisted, if yes how. So many questions, so many suggestions. The child is bound to be bewildered, but not allowed to show even the sign of bewilderment. If it does, she becomes suspect, little wavering on her part, and she is disbilled in open court. What a traumatic experience. It is a part that since there is a wild gulf between the expressions of the child and the language of the courts, often says also get minimized. There is also inordinate delay in recording evidence of such cases. So the special courts also at present being flooded with these cases. And in such situation, when the evidence of the child is the only piece on which the entire case are raised, and when the child is having so many difficulties in giving evidence, and in there is no other collaboration, how to go about it. And that's why, I mean, you know, the POSCO Act has made special provisions in the Act. It has introduced two presumptions and which are of very significant importance because they have made inroads in the fundamental criminal jurisprudence. Whatever fundamental criminal jurisprudence states, that entire burden to prove the case lies on the prosecution. So even if accused doesn't open his mouth in the entire case, it doesn't make difference to the outcome of the case because he is covered with the right of silence. However, as regards these offenses, understanding the vulnerabilities and the difficulties of the child, the two important presumptions are laid down and those presumptions, which are those, for this purpose, Mr. Vikas, can I have the PowerPoint presentation? So we are having, because these two statutory provisions are important and I would like to really quote them to understand them. Mr. Vikas, can I share? This moment has been allowed to you. Okay, okay. Is it visible? No. Okay, I will try again if it is possible. Share, share. It is share is the desktop one or which one to share? I couldn't get hit, ma'am. What are you saying? Desktop one, basic, advanced files. I have to share open system preferences. Just click it on the, click where the screen sharing is shown. That I'm doing, share screen. Then I'm going, but my Mac is giving option share and then I share, it is showing open system preferences. And then it is open, just open the file. It is kept open on the desktop, but you are unable to see. Or if what you can do is you can share it on the WhatsApp to me. I will post it. Okay. So there are two provisions under the act, which are of importance. That is section 29. Till the time I share it, I will talk. So that is section 29. And another is 30. 29 talks about the presumption as to certain offenses. Whereas 13 talk about the presumption as to culpable mental state. Just a minute. Yes. Can I share it or not? Okay. Or you can share it on the email. Okay. I have, now I'm sharing it on WhatsApp. Let us see. Okay. You can, I have sent it. Okay. Okay. So there are these two important provisions. As I said, the first is presumption, which is as to certain offenses. And this presumption, in my opinion, is really of a drastic nature. Because what is presumption says, where a person is prosecuted. I am emphasizing the word prosecuted for committing or abating or attempting to commit any offense under section three, five, seven and section nine of that, the special court shall presume that such person has committed or abated or attempted to commit the offense as the case may be unless the contrary is proved. So what this section directly implies is that the moment a person is prosecuted, the special court shall presume that he has committed an offense unless the contrary is proved. Now what can be the significance of the word is prosecuted when we call the person as prosecuted, when the he's arrested, when charges is filed, or when he's charged is framed, or when the trial is conducted. In my considered opinion, having regard, next slide, having regard to the... Ma'am, as in when you want the slide to be changed, just inform me, I will do it. You have to change it now. Yeah, yeah. No, otherwise as in when you want the slide to be changed. Please change it. Next slide, because it is the first slide, but I would like next slide. So what is the significance of the word prosecuted? That is important. And as I said, whether when the charge sheet is filed, he is said to be prosecuted, or when the charge is framed, he is said to be prosecuted, or when the trial is conducted, evidence is recorded, and at the time of recording 313 of CRPC, he is to be presumed, because here another word important is shall. So at which stage this presumption triggers or comes into effect is important. And what is the effect of this presumption? Plain reading of this section may feel that the moment accused is arrested or charged, this presumption will come into effect, because that is what normally we understand the word prosecuted. So does it mean that then the accused doesn't, a prosecution doesn't have to lead any evidence at all? Does it mean that merely on filing or charge sheet, the accused will be presumed, a accused shall be presumed to be guilty, and then he will have to lead evidence to prove the contrary. So this is what sometimes I feel that legislature might have intended that also, having regard to the difficulty of the prosecution to prove the offense, because it is very difficult and for the child also to give evidence. Child may commit several inconsistencies because of his age, because of her age, because of so many other factors, like vocabulary being not limited, being overcome with the shame, drama, embracement and so many aspects. So that might have been the intention of the legislature to spare the child the drama of giving evidence and it will be for the accused to prove that he is innocent, the moment he is prosecuted. So these are the various angles which are, legislature, what legislature intended, we don't know, but we are having the interpretation of these sections. Now next section, which is also important, change the slide please, is section 13. So first section talks of presumption coming into effect, the moment accused is prosecuted. The second section 30 talks of the mental state of the accused and there is a presumption, which says that in any prosecution for any offense under this act, which requires a culpable mental state on the part of the accused, the special court shall presume the existence of such mental state and it shall be the defense for the accused to prove that he had no such mental state with respect to the act charged as an offense in that prosecution. So this is a presumption as to culpable mental state and why this is important, because in case of subtle sexual offenses, like kissing, fondling, disrobing the child, removing the clothes of the child or showing the child pornography, it is very difficult for the child to state that accused has done this particular act with sexual intent. What evidence child is supposed to give on this aspect, it is also difficult for the prosecution to prove that accused was having such culpable mental state or he has done it with sexual intent and hence, because child is unable to depose about the same, this presumption is laid down, which we will not find in the sexual offenses committed against the adult persons or against the adult woman, because she can state and when she states, it can be said, but so far a child is concerned such subtle sexual offenses which may not occur in respect of a woman, but they may occur and therefore this presumption is of important that moments such act is proved by the child or by the prosecution that child was disrobed, child was kissed, child was fondled in their private parts or otherwise, then the burden will shift on the accused to prove that he had no such mental state that is sexual intent and whatever has happened, it was with pure, you know, innocent way and it has got nothing to do with sexual intent. Now the legislature has made another in-road intercess, it is said that a fact in such cases it is said to be proved only when the special court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. So normally in criminal jurisprudence when certain burden is cast on the accused, he is not expected to prove it beyond reasonable doubt to prove any fact. The burden on him is only preponderance of probability but here as per section 30 sub clause 1 it is for the accused to prove the fact and sub clause 2 says that when he is to prove this fact then he has to prove it beyond reasonable doubt. So the burden which is initially on the prosecution now that burden to prove the mental fact, mental intent, sexual intent on culpable mental state is now shifted entirely on the accused and he has to do it beyond reasonable doubts. So these are somewhat to revolutionary provisions in introducing the act and that is particularly in the context of the vulnerabilities of the child and difficulties for the prosecution to prove its case. Next slide please. And then exactly when we say this pair of two presumptions they are they a radical shift from presumption of innocence to presumption of guilt because section 29 indirectly says that you are presumed guilty unless you prove to be innocent whereas we always in the criminal procedures criminal jurisprudence accuses presumed to be innocence. So whether it is a radical shift and whether section 30 is in making the burden on the accused putting the burden on the accused and lightening the burden of the prosecution to prove certain facts only on preponderance of probability and then the burden will shift on the accused. Next slide please. Then there is also the basic question when we are talking about the evidentiary standards in postcode cases is whether these two provisions mean that prosecution need not reduce any evidence as I said because the moment he is prosecuted presumption will trigger into it as there is already presumption that offense stylish is committed by the accused and it will be for the accused to prove that he has not committed an offense and he has to prove it beyond reasonable doubt and for that purpose we have to see how the law has developed and next slide please. And this talks about the specific purpose of the presumptions. Mr. Vikas, can you change the slide please? Next slide, next. So as I said, this is the normal rule that the burden lies on the prosecution to prove beyond doubt whereas on accused normally on preponderance of probability which discharges through cross examination or other material or any statement under section 313 CRPC. Now these two provisions are therefore popularly known as reverse burden of proof because now they are casting the burden not on the prosecution but on the accused and why it is done to balance the personal rights of accused with communities broader interest in law enforcement. And this is not the only act though this act is I mean drastically different these two provisions from the provisions in other act laying down certain presumptions and we are going to see them also comparatively. So next slide because here when we want as I said the basic presumptions under criminal jurisprudence accused is presumed to be innocent unless proved guilty and entire burden of proof lies on the prosecution to prove the guilt of accused. Next, but sometimes these two this presumption is also having the exception in evidence act itself like section 106 where the facts are especially within the knowledge of the accused the burden is on him to prove those facts here also the initial burden is on the prosecution to prove the charge it may be a case of T of alibi also where the burden shifts on the accused. So there are certain exceptions in the form of presumptions under evidence act also we are seeing how these presumptions under the POSCO act are different from the presumptions laid down in evidence act and other act. And that is like you know under NDPS act we have section 35 which lays down a presumption that when a person is found in possession of narcotropic substance it will be presumed similarly that presumption that possession is conscious possession. We also know section 139 of negotiable instruments act when the check is issued it will be presumed that a person was issued over discharge of legal ability and several such presumptions are there but these presumptions necessarily contemplate the burden on the prosecution to prove certain facts like section 35 contemplate the burden on prosecution to prove that accused was found in possession of narcotic substance. So physical act of possession is required to be proved then only the consciousness of possession will be inferred in negotiable instruments acts also physical act of delivering the check handing over the check is required to be proved then only the presumption will arise that it was issued towards discharge of you know legal date whereas in the presumption under section 29 no such physical act is required to be proved by the prosecution as per section 29 it directly says that man is prosecuted it shall be presumed it doesn't say that he first a child has to prove that the act has happened then only it will be presumed nothing like that so that is a fundamental difference and why this difference next slide please we will have to see with the help of the understanding of presumptions are important why this necessity of presumption because there is a difficulty on the prosecution in proving certain facts like we have seen under 106 of evidence act if certain facts are within the knowledge exclusive knowledge of the accused prosecution will not know since prosecution cannot be asked to do impossible and therefore to plug the loop and gaps in evidence and to get best possible evidence such presumptions are laid down because section 29 and 30 presumptions are to be looked from this angle having next slide having regard to the difficulty which prosecution face next slide because there are certain presumptions and as we all know section 4 may presume shall presume that the world use you prove and these presumptions where they fall that we will see next slide next slide presumptions of facts are inferences from certain facts pattern drawn from the experience and observation of the common course of nature whereas section 114 of evidence talk evidence act talks about discretionary presumption because the world use is main whereas in post co-act in both these provisions the world uses shall therefore these presumptions are in that way mandatory next slide so mandatory presumptions and goes as far as to shift the legal burden and that is what we have seen in both these presumptions next slide but basic difference I mean though we say if the presumption is prosecuted the presumption will come into picture but then what is presumption if we understand that then it will be easier to understand why this provision is interpreted in a different way so presumption in itself not evidence but only rule of evidence making a prima facie case for the party and indicating the person on whom the burden of proof lies so presumption doesn't mean evidence hence when section 29 says that when the accused is prosecuted it shall be presumed that he has committed the offense it may it is not an evidence as such and therefore it is interpreted in a way to say that the burden on the prosecution still remains to prove the essential ingredients of the offense and that we will see with the help of the case laws next slide I mean this presumption to some extent can be comparable to section 113 of evidence act wherein there is presumption as to abatement to suicide on the basis of prosecution proving certain facts like during 7 years from the date of marriage the married woman has committed suicide and it is proved that during this period she was subjected to harassment willful conduct, torture etc then the presumption will arise that if forbid that she has committed suicide on account of such torture or presumption of dowry date certain facts the presumption will be drawn like 114 a also absence of consent here the initial burden on prosecution only on proof of certain facts owner shifts on the accused but as I said 29 doesn't talk of these things section 29 simply says that when accused is prosecuted so the real significant word is what do you understand by the mean prosecuted means accused has to prosecution has to prove certain facts prosecution has to lead evidence then only presumption will arise because in 113 a 113 b or 114 a initial burden is definitely let down on the prosecution in the section itself but section 29 is not laying down that burden at all is not talking that burden at all but then the next slide please as such I mean the question therefore arising is whether accused can be convicted on the basis of presumption and then various high courts have held next slide that it is not so next slide please that is presumption yes when the facts give rise to a presumption of law the prosecution shall be taken to have discharged his obligation to prove its case beyond doubt reasonable doubt in such a case the owner shift to the accused to prove the contrary what is of immense importance to notice that while a presumption of fact can be reverted by an accused by offering an explanation which is reasonable and plausible a presumption of law cannot be discharged by explanation alone what must be proved is that the explanation is true and in that context next slide section 29 is I mean you know required to be considered because Supreme Court has again and again said even in this judgment of Narayan Gautel so presumptions are not evidence but rule of evidence they are there to fill the gap and used to be and to be used by the court in the course of administration of justice to remove lacuna in the chain of direct evidence next next slide and in case of child we have seen what is the necessity of presumption to take care of child who has limited capacities and capabilities and understanding mental state of others and even of herself to lighten the burden and vulnerabilities of already vulnerable child to ensure proper and smooth implementation of that to achieve its object of protection of children so these presumptions are introduced in the act with a very laudable object to ensure that child doesn't have to say anything but till and still then it will be presumed that accused has committed the offense with this particular mental capable mental state next slide next slide please we will go to another next slide because this is pertains to 35 and we may not have to whether these two provisions which you know are totally shifting radically revolutionary change in the criminal jurisprudence whether they can be called as constitutionally valid and that as a question is still not raised before the any high court or the supreme court but that question was for consideration in the case of you know section 35 you of NDPS Act in the judgment of Nuragha because as I said under section 35 you of NDPS Act also the question arose whether the presumption of conscious accusation which is raised under that section is I mean against the fundamental principle of presumption of innocence of the accused and the Supreme Court has held that presumption of innocence is human right but it is not equated to fundamental right and liberty it must be subject to certain restrictions enforcement of law and protection of citizens need to be balanced it must be tested on the wheel of state's responsibility to protect its innocent citizens and therefore Supreme Court had upheld the validity of section 35 you of NDPS Act here also the presumptions are introduced you know to protect the innocent citizens the most vulnerable class of the society that is the children and therefore there is every likelihood that the constitutional validity of these two presumptions will be definitely upheld and it is so because of another reason also and that is next slide because the way next slide it has been interpreted I mean the Supreme Court has said that presumption under section 29 is different from the general jurisprudential practice under CRPC that the prosecution is to prove allegation of the accused and if it fails then the accused is not required to show his innocence so basically it is making a difference because this is the general presumption next slide but now the next if the prosecution succeeds to prove the guilt of the accused as per section 29 of that even in that case accused is asked if he can prosecute the prosecution case through his defense evidence and therefore it is conjoined happening of two events first prosecution succeeding to prove the guilt of the accused and secondly accused failing to revert the veracity of prosecution case that he is called to face the punishment and therefore the burden on the prosecution to lead evidence is not yet you know gone away or washed away that burden still remains next slide then this is the interpretation of the next slide as Riga section 13 its ultimate effect child is required just to give the account of physical act of the accused this account has to stand the test of proof beyond reasonable doubt once this test is complete the statute would fill with the accusation of the accused and then it will be for the accused to disprove culpable mental act accused can prove that child has misunderstood or misinterpreted his good acts so that is entire import of section 30 so the physical act still the burden on the prosecution to prove and then it was not with culpable mental state that will be the burden on the accused the next slide as Riga's 29 I mean which is really the most complex provision because it is not the legislature intent might be different but the way it is interpreted might be different because as I said legislature did not want child to it may be child to give the evidence because giving evidence is again a trauma of victimization and therefore the moment the accused is prosecuted it was said that it will be presumed but now various high courts have interpreted in a different way it is said that proper interpretation of section 29 is that prosecution is absolved from proving its case beyond reasonable doubt but is only required to lead evidence to establish ingredients of offense on a preponderance of probability so the burden is lightened burden is reduced only when prosecution lays foundation of its case by leading cogent and reliable evidence though in a shift on the accused to prove the contrary if the prosecution fails to do so no question arises of in hooking section 29 so this section now 29 is interpreted like section 113a 113b of evidence act where certain facts are required to be proved by prosecution then only the burden will shift but section 29 if we read and we have read it does not say so that certain facts are required to be proved it says prosecuted now what is prosecuted it has been interpreted in such a way that as if accused is tried prosecution has already laid evidence and thereafter only the burden will shift on the accused and why it is done so because according to Calcutta High Court if any other interpretation by holding that prosecuted is as good as filing of chargeship and then the burden will shift that would lead to absurdity of prosecution constitutionally suspect and therefore it has to be interpreted that prosecution has to prove the basic facts may be not beyond reasonable doubt may be only on preponderance of probability but once the prosecution proves it the burden will on the accused next otherwise there will be no burden on the accused at all and this is what is reiterated by Bobahakut again the statutory presumption under section 29 is absolute must be rejected because it is not an absolute presumption if the suggestion is that even if foundational facts are not established the prosecution can invoke the statutory presumption such an interpretation of section would render the said provision vulnerable to the voice to the voice of unconstitutionality this presumption next slide is I mean section under section 29 is you know read like any other presumption under the evidence act or any other presumption under any other law also though the basic I mean intent might have been different but if it was interpreted in that way it would have been constitutionally void and that is what again and again it is said that when it would stand activated as I said prosecuted what does prosecuted means so whether immediately after charge sheet is filed and that is what Bobahakut says the statutory presumption would stand activated only if the prosecution proves the foundational facts that is that the incident has happened it was proved and even if the statutory presumption is activated the burden on the accused is not to revert the presumption beyond reasonable doubt suffice it if the accused is in a position to create a serious doubt about veracity of the prosecution case or the accused bring on record material to render the prosecution version highly improbable so like you know 113 113 b the similarly 29 and 30 are now being interpreted though the legislation intent might be different next slide please that is what again and again they are saying it will operate only upon prosecution proving fundamental facts foundational facts unless the prosecution is able to prove those facts the presumption would not operate against the accused next slide even if the prosecution establishes such facts the prosecution is raised against the accused he can again revert the same either by discrediting the prosecution witnesses through cross examination or otherwise but if you see section 30 of the POSCO Act the mental state I mean accused has to prove and burden of proving the contrary on the accused and that fact he has to prove beyond reasonable doubt on the prosecution 29 says on mere prosecution but then if it was interpreted that like that then it would have been constitutionally void and therefore the various high courts have taken care to ensure next slide that it is interpreted in such a way that it does not come in the become constitutionally suspect now the question again is when this presumption is at the stage of bail or otherwise because at the stage of bail also the prosecution has tried to rely upon this presumption saying that the accused is not presumed to be innocent in such cases but he is presumed to be guilty and burden lies on him to prove the innocence and therefore bail should not be granted there are two I mean contrary views one view yes that presumption will operate at the stage of deciding bail application also whereas another view is that no that will not operate but if the charges framed again the things will be different so in this case of Karnataka it was held that it was a case of romantic relationship and it was argued that in your this presumption I mean accused is not entitled to bail and it was held that it cannot be said that there can be any presumption of forcible acts on the part of the petitioner only the minority of the girl is established then the letter of law will have to be applied till such time to proceed on the presumption that girl was a minor and to incarcerate the petitioner virtually punished and therefore the presumption was not invoked at the time of deciding bail application next slide where whereas I mean Karnataka High Court has taken this view next slide but another high court I mean you will see Kerala High Court has said that this presumption will have to be taken into consideration it was him that having regard to the presumption laid down the presumption 29 of the act the innocence of the accused cannot be presumed and therefore his bail application came to be rejected next slide so there are still at present next close once in I mean there is different different views Supreme Court has yet to pronounce its views as regards these two presumptions which talk of reverse burden of proof what do we understand by reverse burden of proof and how they are made inroads into the fundamental principles of criminal jurisprudence and why it was the necessity to make such inroads especially you know in case of children it is often said that they are the most dangerous class of witnesses because they are susceptible to tutoring they live in the make believe world and these are the words which I am reproducing are from the judgments of the Supreme Court so when the children are considered to be the most susceptible to tutoring considered to be most who can be just give evidence in the make believe world in such cases to discard their evidence after recording it is very traumatic and therefore these two special provisions were led down by the legislation to ensure that the evidence of child might not be required to be recorded at all and then the on the basis of such presumption the guilt of the accused can be proved for example if the medical evidence is very clenching like there is injuries to the private part of the child to the private part of the accused where is the necessity of child again undergoing the trauma of giving evidence in the court if the identification of the accused is the as the same person is proved through the medical evidence through the forensic evidence like DNA or through the evidence of some witness who has seen the accused leaving that place that maybe you know the reason why the prosecution has felt that if it is so traumatic for the child because of its incapabilities because of his innocence because of its vulnerabilities to give evidence why not dispense with the evidence of such a child and cast the burden on the accused himself to prove his innocence but having regard to I mean you know the limit committee has also tried to make inroads in our system of criminal jurisprudence this act has also tried to make inroads but having regard to the drastic punishment provided under the act if the offense is proved the high courts and judiciary is rightly interpreting the same in a balanced way to ensure that the presumption will help the prosecution to fill up the lacuna but it will not obviate the necessity of leading the evidence but while appreciating the evidence in such cases we have to remember that here child is not a witness child is a victim as such when he comes in merely as a witness calling the child as a dangerous class of witness or calling the child as being tutored or living in maybe okay but when child is coming as a victim and which child can imagine or conjure of sex that such you know sexual abuse which is the most tenuous of all crimes most traumatic has happened so here the child's evidence is required to be relied upon to be believed upon otherwise also in sexual offenses against the adult woman also we are saying that her sole testimony is sufficient calling upon collaboration insisting on insulting her injury here also the same situation and more accentuated because here the person who against whom the offense committed the victim is a child who I mean who is beyond you know conjuring up or imagining such incident or being tutor to give such evidence and being able to give the evidence and therefore apart from issuing various guidelines under the act itself as to how to record the evidence and despite that as the vulnerabilities of child continue to remain because of inarticulousness limited vocabulary not knowing the words also sex being a taboo subject and adding Prama to the child here the evidence of the child is required to be relied upon especially in the light of these circumstances. So we show depict the intent of the legislature that nothing now we are shifting the burden to the on the so evidentiary standard under the special legislation is required to be considered as a different one having regard to the different characteristics of the victim of the offense and the nature of the offense that's all I think I would like to say any question and I would like really justice ocean to add something. One question. Whether directions issued by the honorable Supreme Court in the case of are applicable to the offenses under the box with having punishment up to seven years one view is that box of being a special act. These directions are not applicable considering the inconsistent interpretation of section 29 of the high court for its interpretation to be guiding guiding force for the other judgments. Definitely. Supreme Court should do it no question about it but Supreme Court should have occasion also to do it. Some case should be raised before the Supreme Court someone should approach the Supreme Court and basically as regards section 29 as I said the interpretation of two three high courts is seen that burden on the prosecution to prove the foundational facts remain. The Supreme Court should do it. As regards at which stage whether at the stage of bail activated or not that that on that aspect there are inconsistent views and maybe it will reach up to the when they may reach up to the Supreme Court. This is where I look at Neil whether prosecution can file the summary in a box of matters. Question is whether such offenses are compatible. So question doesn't. I mean there is the summary cannot be filed as such. These offenses are not compatible. Then what is the difference between I suppose he wants to ask between a reasonable doubt and a preponderance of probability because he says between doubt and beyond reasonable doubt. Exactly what he wants to ask between doubt doubt may be imaginary also you know doubt may be something not of beyond beyond reasonable doubt is having a standard of his own high standard where you know lingering doubt is not sufficient beyond reasonable doubt so that is calling for higher standard of proof not implicit of proof proving by a preponderance of probability yes what we say beyond shadow yes beyond shadow of doubt and simple put has explained his terms in various of his judgments and some of the judgments I have and supported in my you know and given reproducing my book also you can show the cover of the book again those who have joined it yes the book's name is Decoding of Child Sexual Abuse Justice Shalya had just this book was recently launched around a month ago ma'am it is having the four word written by Honourable Justice B. Y. Chandrachore Supreme Court of India it was launched at the hands of Honourable Justice A. S. Oak Supreme Court of India on 22nd January 2022 so just last month three weeks back it is launched yes those who have want to have more insights whether it is a white spectrum and the index she had shared it covers a white spectrum I can say that it is what Justice Roshan Dalvi said it is a bible you can understand or what we say that it is the Magna Kartav to understand the works right so those who want they can buy the book it is available on the links on the different platforms maybe on Amazon etc and also on the law witness very little to add here except that so far as the presumption is concerned I always say that we have to consider this presumption alongside the conviction there is no conviction there is only a presumption that has to be made and because there was so much clamour that children's cases cannot be proved beyond reasonable doubt because of various factors which Dr Shalini Joshi has told you about that therefore there is legislation there is only presumption once there is presumption it can be reverted it has to be reverted in a particular way now there are two presumptions one of these facts one of the mental state and that would require complete proof beyond reasonable doubt so you can't say I was just here or I was not there and therefore there is preponderance of probability no that will not do and that has to be because you cannot water down a new legislation which has come up by just this kind of interpretation and therefore it is made very clear that it is not on preponderance of probability otherwise in other cases we do a pit on preponderance of probabilities that is really for the presumption aspect I will not go into other aspects because Shalini has not gone into other aspects you know we wanted to concentrate on the correct that is the yes what is the peculiarity of the of this we just wanted a final idea on a particular point which deciphered it from the other part which distinguishes this act from other absolutely the question is if the male child has committed a sexual offense against a female child whether Poxo actually be applicable in such case or whether he is required to be produced before the JJ board it is Poxo act under the it is a gender inclusive or gender neutral so the world person defined under the act I mean you know is any person below the age of child the child is defined under section 2 to mean any person below the age of 18 years so naturally whether that person is a male or female he can be a victim if he is a victim and if he or she is a victim I mean on male child if the sexual offense is committed he will be a victim and will come under the Poxo act now if the abuser is a female and she is also below the age of 18 years then she will go before joining the Poxo act but if she is a major then the case will be tried before the special court under the Poxo act so gender inclusive definition of child means male child can also be subject to the sexual abuse last question if victim is mentally not matured can it come within the ambit of this act yes that is really a good question because you know mental age is not considered under the act what is considered is the physical or biological age and that is how the Supreme Court has interpreted it in the judgment of era which is of 2017 or 18 and which I quoted in my book also Supreme Court has said that legislature has never intended to cover the mental age so in that case the child I mean the victim was 35 years of physical age but her mental age was 6 years only and that fact was not distributed but then the Supreme Court says that legislature has not used the word mental age when legislature has said person below the age of 18 years it means physical age and therefore a person or a child victim mentally below 18 years not coming under the Poxo act she will have to go before the regular court and that is a travesty because you know really she needs the protection the victim of mental age you know is the most vulnerable and that person needs the protection under the act but unfortunately Supreme Court has called upon the legislature to take the call and legislature has still not made any changes in the act so judgment of era is on this point Supreme Court has dealt with that judgment right and the judgment citation is to era versus state of NCT Delhi 2017 volume number 15 Supreme Court cases page 133 so 2017 volume 15 Supreme Court cases 133 and I have dealt it on page number 318 of my book so that aspect is really worth considering now the Supreme Court has passed some directions for creating infrastructure as well as sensitivity in the entire justice system for vulnerable witnesses and that is now going to be done under the ages of justice so this kind of a witness and especially a victim witness would be then covered so whether she goes into the POXO court as we call it POXO or whether she goes into the same court as all criminal courts but gets good sensitive treatment it will not make any difference it's going into this building or that building but she will get all that protection but even then as regards the compensation as regards support person as regards legal assistance so many features like continuing compensation I mean another assistance of so many other persons agencies that can be molded up to a point it can be molded you can always help and therefore she can say this is a vulnerable witness and I am going to have and we will be having now guidelines for all vulnerable witnesses especially the mentally handicapped physically handicapped children form a class but others are also vulnerable witnesses those who have been directed on this platform we have shared the index of the book they can have the insight what the book actually contains as they say it is just like a trailer of the movie you can have the insights what can it be there thank you this is Roshan Dalvi for giving your not only the introduction conclusion and the insights as they say two heads are always better than one and not at all I would say two heads are better than one because the combination of two heads I am saying so I have great respect for her especially I have seen on this platform that whenever you two come then the magic of speaking improves thank you Justice Shalini for taking out the time and sharing the important facets under the box and Justice Roshan Dalvi also thank you everyone stay safe and stay blessed when I say we would be having a session on emerging trends on the arbitration by Justice J.R. Middha former judge of Delhi High Court do stay connected with us at 4.30 thank you