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Mohan S/O. Digambar Lokhande (In … vs The State Of Maharashtra Thr. … on 30 July, 2019

1 apeal198.19.J.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.198 OF 2019

Mohan s/o Digambar Lokhande,
Aged about 42 years,
R/o Khandala, Tahsil Ner,
District Yavatmal. ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through Police Station Officer,
Police Station Ner,
District Yavatmal. ……. RESPONDENT
——————————————————————————————-
Ms. F.N. Haidri, Advocate for Appellant.
Shri T.A. Mirza, APP for Respondent/State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.
DATE: 30th JULY, 2019.

ORAL JUDGMENT:

This appeal questions the judgment dated 06.02.2019

rendered by the Additional Sessions Judge-3, Yavatmal in Special

(POCSO) Case 9 of 2018 whereby the appellant – accused is

convicted for the offences punishable under Section 376 (2)(n) of

the Indian Penal Code and is sentenced to suffer rigorous

imprisonment for a term of ten years and to payment of fine of Rs.

15,000/- and in default to suffer simple imprisonment for one

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year, and is further convicted for the offence punishable under

Section 506 of the Indian Penal Code and is sentenced to suffer

rigorous imprisonment for a term of two years and to payment of

fine of Rs.1000/- and in default to suffer simple imprisonment for

one month.

2] The prosecution case:-

2.1] The victim lodged report dated 05.11.2017 at the Ner

Police Station (Exh.21) alleging that the accused abducted and

subjected her to forcible sexual intercourse multiple times at the

jungle at Arni.

2.2] The victim alleged that on 31.10.2017 at 01:00 p.m.

she received a message on her cell phone from the accused that

the amount (government subsidy – grant) of her cycle is deposited

at the Union Bank, Ner and that she should come near the said

Bank the next day, to which message the victim replied in the

affirmative.

2.3] On 31.10.2017 at 12:30 p.m. the victim came to the

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Union Bank at Ner to withdraw the amount. The accused came

there and told the victim that the amount will not be withdrawn

on that day and offered to drop the victim to her village,

Khandala. The victim agreed and sat on the Splendor Motorcycle

of the accused.

2.4] The accused took the victim via Darwha road and

when the victim told the accused that the said road is not the road

which approaches her village she was threatened with physical

harm to her parents. The victim accompanied the accused due to

the threat issued and was taken to the jungle at Arni.

2.5] The accused snatched the mobile of the victim,

removed and destroyed the sim card and attempted to establish

physical proximity. The victim tried to resist and again the accused

threatened to kill her parents. The accused removed the clothes of

the victim and subjected her to forcible sexual intercourse five

times.

2.6] On 02.11.2017 at 05:00 p.m. the accused dropped the

victim at Nanduri square, Hinganghat and left. The victim walked

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to her maternal aunt’s house. The victim disclosed the entire

episode to her maternal aunt who called the father of the victim.

The victim returned to her village along with her father

on 03.11.2017. Due to fear of defamation the victim did not lodge

the police report immediately. She lodged the police report

on 05.11.2017.

2.7] On the basis of the report Exh.21 offences punishable

under Sections 363, 366-A, 376 (2)(n) and 506 of the Indian

Penal Code and Section 4 of the Protection of Children from

Sexual Offences Act, 2012 (POCSO Act) were registered vide

printed FIR Exh.22.

2.8] PSI Maya Vaishy took charge of the investigation.

She prepared the spot panchanama, sent the victim for medical

examination, arrested the accused, seized the clothes of the victim

and the accused and the Splendor Motorcycle of the accused, sent

the accused for medical examination, recorded the statements of

witnesses, obtained and seized the biological samples of the victim

and the accused, collected and seized the copy of the admission

register of the Zilla Parishad School, sent the seized samples for

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chemical analysis and after completion of investigation submitted

the final report.

2.9] The learned Sessions Judge framed charge (Exh.6) for

the offences punishable under Sections 363, 366-A, 376 (2)(n)

and 506 of the Indian Penal Code and Section 4 of the POCSO Act.

The accused pleaded not guilty and the defence is of total denial

and false implication.

2.10] The prosecution examined PW 1 – victim, PW 2 Ashok

Ramrao Misal, PW 3 Dadarao Laxmanrao Gajghate who is the

father of the victim, PW 4 Avinash Vinayak Jawalkar, PW 5 Dr.

Sushma Sharad Gore and PW 6 PSI Maya Ramesh Vaishy who is

the Investigating Officer.

2.11] The learned Sessions Judge was pleased to convict the

accused as afore-stated. The learned Sessions Judge recorded a

finding that the prosecution did not prove that the victim was

aged less than 18 years and therefore, the provisions of the

POCSO Act are not attracted. The learned Sessions Judge found

that the delay in lodging the report is explained. The evidence of

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the victim is found reliable. The defence that the sexual

intercourse, if any, was consensual is rejected.

3] I have heard the learned counsel Ms. F.N. Haidri for

the appellant and the learned Additional Public Prosecutor

Shri T.A. Mirza for the respondent/State.

4] Ms. F.N. Haidri would submit that the prosecution

failed to prove beyond reasonable doubt that the victim was

subjected to forcible sexual intercourse much less on multiple

occasions from 31.10.2017 till 02.11.2017. Ms. F.N. Haidri would

submit that the sexual relationship, assuming arguendo that the

sexual contact was established, was obviously consensual. Ms. F.N.

Haidri highlights the delay in lodging the report and the

embellishments in the evidence of the victim to buttress the

submission that the evidence of the victim cannot be the basis of

conviction.

5] In rebuttal the learned APP Shri T.A. Mirza would

submit that the evidence on record clinchingly establishes that the

victim was subjected to forcible sexual intercourse on multiple

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occasions and the defence of consent must be rejected since the

statutory presumption under Section 114-A of the Indian Evidence

Act, 1872 is not rebutted.

6] The learned Sessions Judge has held that the

prosecution failed to prove the age of the victim, and as see no

reason to differ. In all fairness, the learned APP Shri T.A. Mirza has

not argued that the learned Sessions Judge erred in holding that

the age of the victim is not proved and therefore, the provisions of

the POCSO Act are not attracted.

7] The central evidence is that of PW 1 – victim. She has

deposed that the accused is her maternal uncle and is a member of

Gram Panchayat. She states that the accused told her that the

amount of cycle is deposited in Union Bank, Ner. The victim states

that she took Rs.200/- from her father and came to Ner.

The accused told her that the money will not be released on that

day and that they should return home. The victim then states that

instead of taking her home the accused took her on his

two-wheeler to a forest and had sexual intercourse. The victim

further states that she stayed with the accused for two days during

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the course of which stay the accused subjected her forcible sexual

intercourse five times. The victim then states that she asked the

accused to drop her at her maternal aunt’s house. On 02.11.2017

the accused dropped her at Hinganghat and then the victim

maternal aunt telephonically called her father who came to fetch

the victim on 03.11.2017. The victim states that the report was

lodged on 05.11.2017.

8] The victim was subjected to searching and prolonged

cross-examination during the course of which it is extracted that

the victim does not know her cell phone number or the cell phone

number of the accused. The victim denies that she received

message from the accused on 30.10.2017, which denial is

inconsistent with the report. The victim denies the suggestion that

since many years there were exchanges of messages between her

and the accused, which suggestion was presumably given to lay

the foundation of the defence of consensual sexual relationship.

The victim further denies that she and the accused used to talk on

cell phone. It is extracted that the police station is situated beside

the Union Bank which faces the east-west Amravati-Yavatmal road

and the north-south Shivaji Nagar, road. It is further elicited that

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in an around Union Bank the main market and shops are located.

The victim states that she went inside the Bank, made inquiries

and in the next breath states that due to the rush she returned

back without making inquiry. The victim then states that she did

not inquire with the accused about the money nor did the accused

tell her anything about the money. The endeavour of the defence

was to bring on record that there was no occasion whatsoever for

the victim to visit the Bank, and as a fact the victim did not visit

the Bank as is her version. The victim however, denies the

suggestions given on these lines. The victim admits that on the

way from Ner to Arni she did not complaint to any person and

volunteers that she was threatened by the accused. The victim

admits that she could have jumped from the motorcycle or could

have alerted the people and then again volunteers that she was

threatened. The victim admits that when she left home she was

having mobile hand set and then volunteers that the mobile was

not charged. At a later stage in the cross-examination she states

that on the day of the incident the mobile and sim card were

broken and crushed. The first information report does not

attribute any role to the accused in the destruction of the mobile

set or sim card. The victim then admits that there was ample

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opportunity to escape from the scene of incident. The victim

volunteers that since she was administered intoxicating pills she is

not in a position to remember the details and her memory is

impaired. The victim states that she does not remember whether

she had meal on the day of the incident. In response to a

suggestion, she states that she does not know that on the day of

the incident in the evening accused brought bhaji-poli and mineral

water for her. The victim states that she does not remember what

is stated in the police report. The victim states that due to

intoxicating pills she does not know who did what with her on the

day of the incident and the day following. The victim admits that

Arni to Hinganghat is journey of three hours. The victim denies

the suggestion that on the day of the incident she purchased

clothes and gold at Digras. She denies the suggestion that on the

day of the incident and the day thereafter she was at Mahagaon

and Digras.

9] The medical evidence may now be scanned.

The victim was medically examined by PW 5 Dr. Sushma Sharad

Gore who admits that there was no forcible sexual intercourse.

PW 6 further admits that the victim was not under intoxication

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due to alcohol or drug. PW 5 admits that hymen can tear due to

reasons other than rape. PW 6 admits that fresh and old hymen

tear can be differentiated. PW 5 has proved the medical certificate

Exh.48. Perusal of medical certificate Exh.48 would show that no

evidence of any obvious external injury was found. The age of the

hymen tear is not recorded in the certificate. The medical evidence

is of no assistance to the prosecution and is of no corroborative

value. No injury whatsoever is detected on the person of the victim

and the age of the hymen tear is not disclosed in the report.

However, Shri T.A. Mirza, the learned APP would submit that in

view of the reliable evidence of the victim, no corroboration is

necessary and the fact that the medical evidence is not conclusive

or is of no corroborative value is not fatal to the case of the

prosecution. This submission shall be considered at a later stage in

the judgment.

10] The learned Sessions Judge has held, and I concur,

that the reports of the chemical analyzer to whom the biological

samples and the clothes were sent for chemical analysis (Exh.59 to

61) do not take the case of the prosecution any further since there

is nothing incriminating in the said reports. PW 2 Ashok Misal is

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examined to prove the spot panchanama Exh.26 and the seizure

panchanama of the motorcycle Exh.27. In the cross-examination it

is elicited that two routes, from Darwha as well as Yavatmal, are

available to approach Arni and in between Ner and Darwha and

Darwha to Arni there are small villages and shops. PW 2 denies

the suggestion that there was a stone mine where labours were

working, near the spot of the incident. PW 2 is not in a position to

state who applied the whitener on Exh.26 and when the map was

drawn. PW 2 is not in a position to state whether the map was in

existence when he signed the panchanama. The evidence of PW 3

Dadarao Gajghate, who is the father of the victim, is relied upon

by the prosecution to the extent of the disclosure made by the

victim when she was fetched from the house of her maternal aunt

at Hinganghat. PW 3 has also attempted to explain the delay in

lodging the report. Several suggestions are given by the defence to

PW 3 to buttress plea of false implication, which suggestions are

denied. It is not necessary to consider the evidence of PW 4

Avinash Jawalkar who is examined to prove the school record of

the victim since the learned Sessions Judge has rightly held that

the primary material on the basis of which the entry in the school

record is taken is not proved. PW 6 is the Investigating Officer

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through whose evidence the omissions in the evidence of the

victim are proved. PW 6 Maya Vaishy admits that she did not

make any inquiry as regards the Bank account of the victim at the

Union Bank and that she did not visit the Union Bank. PW 6 states

that since the story of the cycle amount was false, she did not

make any inquiry in that regard. It is elicited in the evidence of the

Investigating Officer that she made inquiries with the shop owners

in the vicinity of the Union Bank and that nobody disclosed

anything about the presence of the victim in front of the Union

Bank. The Investigating Officer volunteers that the victim was not

known to the shopkeepers. PW 6 admits that she did not come

across any witness who saw the victim and the accused traveling

from Ner to Arni and then from Arni to Hinganghat. PW 6 admits

that she did not seize the mobile of the accused.

11] It is well settled that if the evidence of the victim is of

sterling quality, the conviction can be based on the sole and

uncorroborated testimony of the victim. The victim is not an

accomplice and her evidence must be treated akin to that of an

injured witness. If the evidence of the victim of sexual offence is

implicitly reliable and confidence inspiring, no corroboration is

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required and if there is any lingering doubt assurance short of

corroboration may be sought from the other evidence on record

including the medical evidence. Reference may be made to the

decisions of the Apex Court in [i] 2010 (8) SCC 191 : [2010 ALL

MR (Cri) 3326 (S.C.)] Vijay alias Chinee vs. State of Madhya

Pradesh. [ii] 2014 Cri. L.J. 1092 : [2014 ALL SCR 984] State of

Rajasthan vs. Rohsan Khan and others. [iii] State of Himachal

Pradesh vs. Gian Chand AIR 2001 SC 2075. [iv] AIR 1995 SC

2447 Karnel Singh v. State of M.P. [v] AIR 1987 SC 1087

Balwant Singh and others v. State of Punjab and Saudagar

Singh v. State of Punjab. In all fairness Ms. F.N. Haidri, the

learned counsel for the accused has not even argued to the

contrary. Ms. F.N. Haidri has no quarrel with the settled position of

law that the absence of injury is not decisive and that if the

evidence of the prosecutrix – victim is found implicitly reliable,

conviction can be based on her sole uncorroborated testimony.

Ms. F.N. Haidri would however argue that the evidence of the

victim is wholly unreliable. The evidence of the victim is

inconsistent with the first information report, is marred by

embellishment and her version is inherently improbable. Ms. F.N.

Haidri would submit that in the factual matrix the delay in lodging

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the first information report assumes significance. Ms. F.N. Haidri

would invite my attention to the decision of the Apex Court in

State of Karnataka vs. F. Nataraj reported in 2015(10) SCALE

495 and in particular to paragraphs 10, 12 and 16 thereof.

In State of Karnataka vs. F. Nataraj the Apex Court notes that the

victim did not raise any alarm when the accused attempted to

kidnap her, which is quite unnatural and that the material

witnesses were not examined. The Apex Court noted the

discrepant testimonies and the gaps in the evidence of the

prosecutrix and the medical officer and held that the solitary

evidence of the prosecution, in the absence of any corroboration

by the medical evidence, is not of such quality which can be relied

upon. Ms. F.N. Haidri further relies on the decision of the Apex

Court in Mohd. Ali alias Guddu v. State of Uttar Pradesh

reported in (2015) 7 SCC 272 in support of the submission that

when the Court on scrutiny of the evidence finds it difficult to

accept the version of the prosecutrix then there is a requirement to

ascertain the existence of such direct or circumstantial evidence as

would lend assurance to her testimony. Ms. F.N. Haidri would

further rely on the decision of the Supreme Court in Rajoo and

others v. State of M.P. reported in AIR 2009 858 and in particular

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the following observations:

9. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a
prosecutrix should not be suspect and should be
believed, the more so as her statement has to be
evaluated at par with that of an injured witness and
if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid observations
must carry the greatest weight and we respectfully
agree with them, but at the same time they cannot
be universally and mechanically applied to the facts
of every case of sexual assault which comes before
the Court. It cannot be lost sight of that rape causes
the greatest distress and humiliation to the victim
but at the same time a false allegation of rape can
cause equal distress, humiliation and damage to the
accused as well. The accused must also be protected
against the possibility of false implication,
particularly where a large number of accused are
involved. It must, further, be borne in mind that the
broad principle is that an injured witness was
present at the time when the incident happened and
that ordinarily such a witness would not tell a lie as
to the actual assailants, but there is no presumption
or any basis for assuming that the statement of such
a witness is always correct or without any
embellishment or exaggeration. Reference has been
made in Gurmit Singh’s case to the amendments in
1983 to Sections 375 and 376 of the Indian Penal
Code making the penal provisions relating to rape
more stringent, and also to Section 114-A of the
Evidence Act with respect to a presumption to be
raised with regard to allegations of consensual sex in
a case of alleged rape. It is however significant that
Sections 113-A and 113-B too were inserted in the
Evidence Act by the same amendment by which
certain presumptions in cases of abetment of suicide
and dowry death have been raised against the
accused. These two Sections, thus, raise a clear

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presumption in favour of the prosecution but no
similar presumption with respect to rape is
visualized as the presumption under Section 114-A
is extremely restricted in its applicability.
This clearly shows that in so far as allegations of
rape are concerned, the evidence of a prosecutrix
must be examined as that of an injured witness
whose presence at the spot is probable but it can
never be presumed that her statement should,
without exception, be taken as the gospel truth.
Additionally her statement can, at best, be adjudged
on the principle that ordinarily no injured witness
would tell a lie or implicate a person falsely.
We believe that it is under these principles that this
case, and others such as this one, need to be
examined.

12] Shri T.A. Mirza, the learned APP would rely on the

decision of a learned Single Judge of this Court (Rohit B. Deo, J.)

in Prafulla Vinayak Nage Anr. vs. The State of Maharashtra

reported in 2018 ALL MR (Cri) 525 and the decision of the

Division Bench in The State of Maharashtra v. Macchindra @

Babdu Gangadhar Sonawane reported in 2019 ALL MR (Cri)

2353. The decision of the Division Bench is pressed in service to

buttress the submission that presumption under Section 114-A

that the victim did not consent is not rebutted. Section 114-A of

the Indian Evidence Act provides that in prosecution for certain

categories of rape where sexual intercourse by the accused is

proved and the question is whether it was without the consent of

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the woman alleged to have been raped and she states in the

evidence that she did not consent, the Court shall presume that

she did not consent. Section 4 of the Indian Evidence Act

mandates that whenever it is directed by this Act that the Court

shall presume a fact, it shall regard such fact as proved, unless and

until it is disproved.

13] The seminal question is whether the evidence of the

victim is trust worthy and implicitly reliable as would obviate the

need to seek corroboration or assurance short of corroboration.

I have given anxious consideration to the evidence of the victim

and having done so, I am satisfied that the evidence of the victim

is not confidence inspiring. The evidence in the Court is

inconsistent with the first information report. The version of the

victim that she was asked by the accused to come to Ner on the

pretext of withdrawing certain amount from the Union Bank is

belied by the admissions in the cross-examination and the

evidence of the Investigating Officer who could not collect any

evidence to indicate the presence of the victim at the Union Bank

at Ner. While in the first information report the victim states that

she received a SMS from the accused on her mobile asking her to

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come to Ner, in the evidence she out rightly denies that she

received SMS from the accused. There is no cogent evidence on

record to suggest that the victim was asked to come to Ner under a

false pretext. The victim traveled on the motorcycle of the accused

from Ner to Arni which is a three hour journey. The victim admits

that she could have alerted people on the way and indeed could

have jumped from the vehicle. The explanation of the victim that

she did not do so since the accused issued threats is not

convincing. Equally unconvincing is the version of the victim that

she and the accused stayed in the jungle from 31.10.2017 till

02.11.2017 during which period she was subjected to forcible

sexual intercourse five times. The response of the victim to

probing questions is tentative and indeed bordering on the

evasive. The victim states that she does not remember whether on

the evening of the day of the incident the accused brought meal

and mineral water for her. The victim states that she does not

remember what she stated in the police report. Answers to

inconvenient questions are evaded by stating that she was

administered intoxicating pills. Be it noted, that the administration

of intoxicating pills is stated for the first time in the Court.

The victim admits that there was ample opportunity to flee from

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the scene of the incident and the explanation for not availing the

opportunity which is given is the administration of intoxicating

pills. At one stage, the victim states that due to intoxication she

did not know who did what with her on the day of the incident

and the next day. The victim then states that she told the accused

to drop her at her maternal aunt place, and the accused obliged.

Why would the victim ask the accused to drop her at her maternal

aunt’s place in Hinganghat and not at her village in Khandala,

when admittedly both the victim and the accused are residents of

Khandala, is left unexplained. Again, there is no explanation as to

why the victim could not alert anybody on her way from the scene

of the incident to Hinganghat. It is in the context of the fragile

evidence that the delay in lodging the first information report

must be viewed. Ordinarily, in cases of sexual assault the delay in

lodging the first information report may not always be very

significant. The delay would have to be examined in the context of

the individual facts of the case and obviously there cannot be a

straight jacket formula to assess the impact of the delay on the

case of the prosecution. It is seen that due to fear of defamation

and social stigma the family of the victim of sexual assault are at

times reluctant to lodge police report promptly. In the present

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case, since the very credibility of the victim’s version appears to be

in serious doubt, the delay in lodging the report would assume

significance.

14] I am satisfied that the evidence of the victim is not of

such sterling quality as would obviate the need to seek

corroboration or assurance. Au contraire, the evidence is not at all

confidence inspiring and there is a lingering doubt that the victim

is not subjected to sexual intercourse, and at any rate the sexual

intercourse is consensual. Such doubt arises since the evidence of

the victim is marred by embellishments and there is an attempt to

evade the questions in the cross-examination and to avoid

answering the probing questions on the pretext that the victim

memory was impaired since she was administered intoxicating

pills, to which there is no reference at all in the statement

recorded during the investigation. The conduct of the victim is

unnatural. The version of the victim that she was induced to come

to Ner it belied by the evidence on record. The victim admits that

there was ample opportunity to escape and to alert the people on

way to Arni and then to Hinganghat and as noted supra the

explanation that she was issued threats by the accused and the

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improvised version that she was administered intoxicating pills

does no service to the prosecution case.

15] The submission of the learned APP Shri T.A. Mirza is

that in view of the presumption under Section 114-A of the Indian

Evidence Act it shall have to be held that the victim did not

consent. Section 114-A of the Indian Evidence Act provides that in

a prosecution for rape under certain clauses of sub-section (2) of

Section 376 of the Indian Penal Code, where sexual intercourse by

the accused is proved and the question is whether it was without

the consent of the woman alleged to have been raped and such

woman states in her evidence before the Court that she did not

consent, the Court shall presume that she did not consent.

The prosecution was for rape under clause (n) of sub-section (2)

of Section 376 in view of the allegation that the victim was

subjected to multiple forcible sexual intercourse. However, the

foundational fact which must be established before the

presumption under Section 114-A is triggered is that the victim

was subjected to sexual intercourse by the accused. In the teeth of

the evidence on record, it is difficult to conclude with any degree

of certainty that the victim was subjected to sexual intercourse

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much less on multiple occasions. Moreover, while it is mandatory

to draw the presumption in view of the use of the expression,

“shall presume” the presumption can be rebutted. What is

provided is presumption and not conclusive proof of the fact.

16] The learned APP Shri T.A. Mirza argues that the

legislative mandate as is discernible from Section 114-A read with

Section 4 of the Indian Evidence Act is that the Court shall regard

that absence of consent is proved unless and until it is disproved.

I have already observed that the prosecution has not proved the

foundational fact beyond reasonable doubt. Moreover, in my

considered opinion the legislative intent is not that the accused

must disprove the absence of consent beyond reasonable doubt.

It would not be necessary for the accused to adduce direct

evidence to prove that there was consent or to disprove the

absence of consent. The accused can rely on material brought on

record in the cross-examination of the victim and the evidence of

the other prosecution witnesses. In the present case, enough

material is brought on record in the cross-examination of the

victim and the evidence of the other prosecution witnesses to lend

credibility to the alternate defence theory that the sex was

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24 apeal198.19.J.odt

consensual. It would be apposite to refer to the following

observations of a learned Single Judge of this Court in Sudhakar

Two Ors. v. State of Maharashtra reported in 2004 (3) Crimes

657:

18. While the intention of law makers
while introducing the amendment and providing
severe punishment by incorporating sub clause (b)
in Section 376(2) as well while introducing Section
114-A of the Evidence Act also requires to be
respected, the potential risk that follows is that any
error in reaching the conclusion as to the lack of
consent results in the conviction. The text of
presumption as to lack of consent cannot be said to
operate to a fixed yardstick or rigid rule where bare
testimony of the prosecutrix in the form of her
statement before the Court that she did not give
consent would lead to raise an arithmetical
equation of leading the court to conclude in favour
of conviction and award the sentence. The statement
of victim, therefore, required to be assessed by
considering the entirety of evidence that may come
before the Court. The manner in which the victim
openly moved around clearly impeaches the
testimony of the prosecutrix that she did not consent
for the intercourse. The presumption raised in
Section 114-A of the Evidence Act, does not preclude
the Court from assessing the entirety of the evidence
that comes before the Court. Be that as it may, the
presumption raised under Section 114-A is laying
down rigid yardsticks that no other conclusion is
possible and that the accused have by evidence other
than one which has come before the Court through
the presumption to prove to the contrary, it would
lead to the conclusion that never intended by the
said Section.

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25 apeal198.19.J.odt

I respectfully concur with the above quoted observations.

17] The prosecution case has too many holes and grey

areas and it would be absolutely unsafe to base the conviction on

the testimony of the victim which is not corroborated. Enough

doubt is created about the veracity of the victim’s version and the

benefit of the doubt must go to the accused. I am satisfied that the

prosecution has not proved the offence beyond reasonable doubt

and the gulf between suspicion and proof is not bridged.

18] The judgment dated 06.02.2019 rendered by the

Additional Sessions Judge-3, Yavatmal in Special (POCSO) Case 9

of 2018 is set aside.

19] The accused is acquitted of offence punishable under

Section 376 (2)(n) and 506 of the Indian Penal Code.

20] The fine paid by the accused, if any, shall be refunded.

21] The accused shall be released from custody forthwith

unless his custody is required in connection with any other crime.

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                                      26                apeal198.19.J.odt

22] The appeal is allowed.

JUDGE

NSN

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