Failure to conduct TIP and lack of visibility render dock identification of strangers unreliable, rebutting POCSO Act presumptions.

The Appellants, Sukur Ali and Najir Hussain, were convicted by the Special Judge (POCSO), Kokrajhar, for the gang rape of a minor (PW2) under Section 376D IPC and Section 6 of the POCSO Act

The prosecution alleged that on 21.07.2017, the victim was dragged to a Cooperative Society office, tied up, and raped by a juvenile (CCL) followed by the two Appellants

The victim was found unconscious by her father (PW3) at 1:30 AM

The Appellants were identified by the victim at the police station after being arrested and brought there by the Investigating Officer (PW16)

The medical report indicated the victim was aged 12–14 but found no recent injuries or spermatozoa within the 72-hour window

1. Whether the failure to conduct a Test Identification Parade (TIP) and the subsequent "dock identification" after showing the accused to the victim at the police station vitiated the trial

2. Whether the prosecution established the "foundational facts" necessary to trigger the presumption of guilt under Section 29 of the POCSO Act

Section 9 of the Indian Evidence Act regarding the relevancy of facts establishing identity

Ranvir Singh v. State of Madhya Pradesh and Gireesan Nair v. State of Kerala, which emphasize that while TIP is not substantive evidence, it is a rule of prudence to ensure an investigation is on the right track when the accused is unknown to the witness

Dana Yadav v. State of Bihar, holding that dock identification for the first time is inherently weak unless corroborated by a previous TIP or distinctive features noticed by the witness

Interpretation of Section 29 of the POCSO Act as per Debraj Dutta v. State of West Bengal, which requires the prosecution to prove "foundational facts" through credible testimony before the presumption of guilt can be invoked against the accused

The court found the identification process fundamentally flawed. Although the victim claimed in court to have seen the accused previously as construction workers, she had earlier stated before a Magistrate that she had never seen them before the incident

Crucially, the victim admitted it was totally dark at the time of the occurrence and "nothing could be seen," yet she allegedly identified three strangers later

The court noted that the IO (PW16) did not conduct a TIP but instead showed the Appellants to the victim at the police station, leading to a biased identification

Since the prosecution failed to prove the identity of the perpetrators under conditions where visibility was zero, the "foundational facts" of the crime were not established

Consequently, the statutory presumption under Section 29 of the POCSO Act could not be triggered, as the victim's testimony regarding identification was not found to be "fully credible and trustworthy"

The medical evidence also failed to corroborate recent sexual assault

On the second issue, it held that the presumption under Section 29 of the POCSO Act did not arise as the foundational facts remained unproven

The Gauhati High Court set aside the Judgment and Order dated 11.03.2022, acquitted the Appellants of all charges, and ordered their immediate release