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Sagar Dinanath Jadhav (In Jail) vs State Of Maharashtra Thr. Police … on 25 June, 2018

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

Criminal Appeal No.212/2017

Sagar Dinanath Jadhav,
Aged about 22 years,
Occu: Student,
R/o Parvati Nagar, Old City, Akola .. APPELLANT

.. Versus ..

State of Maharashtra,
through Police Station Officer,
Old City Police Station, Akola .. RESPONDENT

Mr. R.M.Daga, Advocate for Appellant.
Mr. Alap Palshikar, APP for Respondent

….

CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : JUNE 08, 2018.
DATE OF PRONOUNCING JUDGMENT : JUNE 25, 2018

JUDGMENT

1. The appellant herein has challenged his conviction

under Section 4 of the Protection of Children from Sexual

Offences Act, 2012 (POCSO Act) and Sections 452 and 377 of

the Indian Penal Code (IPC) for which he has been sentenced to

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suffer rigorous imprisonment for periods of 10 years, 2 years

and 7 years respectively with the sentences running

concurrently, as also to pay fine amounts of Rs.5,000/- on each

count. The Special Court at Akola (trial Court) has awarded

the aforesaid sentences against the appellant/accused in

Sessions Case No.94 of 2013.

2. The prosecution case before the trial Court was that

the victim in this case (PW6) was 16 years old when incident in

question occurred on 28.04.2013. He was staying in hostel in

village Vanoja and studying in 7th standard in Shivaji Vidyalaya.

But, at the relevant time he had come to Akola to stay with his

uncle. The house belonging to the father of the victim was

located in Parvati Nagar, Akola, where his father used to live

alone as his mother was working and residing at Surat.

According to the prosecution case, on 28.04.2013, when the

victim had gone to his house at Parvati Nagar at about 10

a.m. , there was nobody in the house and that when the victim

entered his house, the accused i.e. the appellant herein, a

resident of the neighbourhood, followed him into the house and

started a conversation with the victim.

3. Upon the victim entering into one of the rooms of the

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house, the appellant entered the same, closed the door and

caught hold of the victim. Thereafter the appellant took off his

pant and underwear and those of the victim and committed

forcible anal sexual intercourse with the victim. Thereafter, the

appellant put on his clothes and went away. The victim then

narrated the incident to his uncle upon which the uncle

approached the Police Station submitting a report, leading to

registration of first information report (FIR) against the

appellant on 28.04.2013 itself in Police Station, Old City, Akola,

for offences under the provisions of the POCSO Act and the IPC.

4. The Police undertook investigation, preparing spot

panchanama. The victim as well as the appellant were sent for

medical examination and upon seizure of the clothes and other

items of the victim as well as the appellant, the same were

sent for chemical analysis. Upon completion of investigation,

the investigating officer (PW7) submitted charge sheet, upon

which the appellant was charged with having committed

aforesaid offences.

5. In order to prove its case, the prosecution examined

eight witnesses of whom the material witnesses were PW2

Ramesh Ahir, the uncle of the victim who took the victim to the

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Police Station for registration of offence against the appellant,

PW6 the victim himself, PW7 Satish Farkade, the investigating

officer and PW8 Dr. Ashwin, the doctor who had examined the

victim. The other witnesses were the panch witnesses for spot

panchanama and seizure memo as also Head Master of the

School where the victim was studying, so as to prove his date

of birth. There were two defence witnesses examined by the

appellant in support of his defence, DW1 Manisha Ratnaparkhi

being a neighbour and DW2 Sanjay Bopulkar, who also knew

the appellant and his family.

6. The defence of the appellant was that there had been

a quarrel on 27.04.2013, a day prior to the date of the alleged

incident between the appellant and the victim’s uncle, wherein

the appellant had slapped the victim. According to the

appellant, this had led to the victim and his uncle falsely

implicating the appellant in the present case. This was the

nature of the explanation given by the appellant in his

statement recorded under Section 313 of the Code of Criminal

Procedure. Defence witnesses were examined by him to

support his case that on the date and time of the incident he

along with his family had gone to attend a Satsang near

Balapur Naka on the National Highway.

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7. The trial Court took into consideration evidence

placed on record by the prosecution as well as the defence and

it came to the conclusion that the prosecution had proved its

case beyond reasonable doubt against the appellant. The trial

Court rejected the defence of the appellant and thereby

convicted and sentenced him in the aforesaid manner.

Aggrieved by the same, the present appeal has been filed.

8. Mr. R.M. Daga, learned counsel appearing on behalf of

the appellant, submitted that the description of the incident by

the victim in the present case about the appellant having

entered the house of the victim and after starting a

conversation, indulging in the alleged act, appears to be

unnatural. It is pointed out that the father of the victim had not

come forward at all in support of the prosecution case and it

was only the uncle (PW2) who had taken lead in the matter. It

is submitted that the medical examination report of the victim

shows that there were no stains or foreign body or hair found

in the anal region of the victim and only a small mucosal tear

was noticed by the doctor. The chemical analysis of the anal

swab did not show any semen and the underwear of the victim

also did not show presence of semen. It was submitted that

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when this report was read with the evidence of the doctor

(PW8), it became evident that there was no support for the

allegation made by the victim against the appellant regarding

forcible anal intercourse. It was submitted that the evidence of

the defence witnesses clearly supported the case of the

appellant because not only had the said witnesses vouched for

the fact that the appellant and his family had gone to attend a

Satsang at the time and the date when the incident was said to

have occurred, but they had also supported the case of the

appellant that there had been a quarrel between the appellant

and the victim’s uncle a day prior to the date of the incident

when the appellant had assaulted the victim. On this basis, it

was contended that the present case was clearly a case of false

implication and that the impugned judgment and order of the

trial Court deserved to be quashed and set aside.

9. Per contra, Mr. Alap Palshikar, learned Additional

Public Prosecutor, appearing on behalf of the State, submitted

that there was sufficient evidence on record to confirm the

conviction and sentence imposed by the trial Court. It was

submitted that when it was proved by the prosecution that the

victim was a child as defined under Section 2 (d) of the POCSO

Act, presumption under Section 29 of the said Act came into

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operation and it was to be presumed that the incident had

occurred in the manner in which it was stated by the victim

(PW6) and that it was for the appellant to prove the contrary. It

was submitted that the appellant had failed to rebut the

presumption and that even otherwise there was sufficient

evidence placed on record on behalf of the prosecution,

demonstrating that the trial Court was justified in convicting

and sentencing the appellant.

10. In the present case there is no serious argument

raised on behalf of the appellant in respect of the victim being

less than 18 years of age and, therefore, he was a child as

defined under Section 2 (d) of the POCSO Act at the time of the

incident. As a result, presumption under Section 29 of the

POCSO Act comes into operation and it is to be presumed that

the incident as claimed by the victim in the present case did

occur and that it was for the appellant to prove the contrary.

As a result, the burden would shift on the appellant/accused in

the present case to prove his defence and to rebut the

presumption that stood raised under Section 29 of the POCSO

Act.

11. It is settled law that while rebutting the presumption

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raised against the appellant, he would have to prove it on

preponderance of probabilities. This is the position of law as

laid down by the Hon’ble Supreme Court as regards the manner

in which statutory presumptions can be rebutted in the context

of Penal Laws. In the case of M.S. Narayana Menon .vs.

State of Kerala – (2006) 6 Supreme Court Cases 39, the

Honble Supreme Court has held that presumption under a

statute has only an evidentiary value and that the standard of

proof required for rebutting such a presumption is on the

principle of preponderance of probabilities. It is also

undoubtedly true that no presumption can be absolute and that

every presumption is rebuttable.

12. In this backdrop, the evidence of the prosecutrix as

well as the defence in the present case will have to be

analysed. The prosecution case hinges upon the evidence of

the victim (PW6), his uncle (PW2) as also the medical

examination report (Exh.41) and the evidence of the doctor-

PW8.

13. A perusal of the evidence of the victim PW6 shows

that according to him when he visited his house on 28.04.2013

by opening the lock, the appellant followed him and upon

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entering a room within the house, the appellant closed the door

and then committed the aforesaid act of forcible anal sexual

intercourse. It has come on record that the appellant is a

resident of the neighbourhood of the house of the victim. The

victim claims to have informed his uncle about the said act

committed by the appellant, upon which the FIR stood

registered and investigation was initiated. The FIR shows that

it was registered at 5.10 p.m. while the uncle PW2 claims that

he along with the victim had approached the Police Station at

about 2 p.m. on the date of the incident. It is further stated in

the cross-examination of the uncle PW2 that the Police Station

is only about 15 minutes from his house. A perusal of the

medical report concerning the victim shows that there are no

stains or foreign body or hair found in the anal region of the

victim. It is recorded that the mucosa was inflamed and there

was a mucosal tear of small size. The anal swab sent for

chemical analysis did not show any semen. The clothes of the

victim also did not show any semen.

14. The doctor PW8 has stated in evidence that he had

not mentioned the age of the injury found in the anal region of

the victim. In cross-examination the said witness stated that

the aforesaid mucosal tear found in the anal region of the

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victim could be caused if a person was suffering from

constipation or hard stool. It was also stated that such a tear

could be caused by the pointed carrier of bicycle, while riding

a bicycle.

15. The appellant has explained in his statement under

Section 313 of the Cr.P.C. that a day prior to the incident there

had been a quarrel between him and the victim because the

victim had punctured the cycle tyre of the cousin sister of the

appellant. Thereafter, the victim had damaged the indicator of

two wheeler of the appellant’s uncle, due to which the

appellant had given two or three slaps to the victim. It was

stated by the appellant that the victim’s uncle had come to the

house of the appellant in the evening along with the victim and

there was a heated exchange between them. It was the case

of the appellant that this quarrel had led to the victim and his

uncle falsely implicating the appellant in the present case. A

perusal of the evidence of the DW1 examined on behalf of the

appellant shows that the said witness was a resident of the

same area and that she supported the version of the appellant

as regards the quarrel that had taken place a day before the

incident between the appellant and the victim and the fact that

the appellant had assaulted the victim. The said witness has

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stated that the appellant and his family used to regularly go for

Satsang and that on the day of the incident also they were

away for Satsang. DW2 examined on behalf of the appellant

has stated in his evidence that he knew the appellant and his

family and that he also used to attend the same Satsang which

was attended by the appellant and his family. This witness has

stated that on the date of the incident, the appellant and his

family members had arrived at the place of Satsang at about

8 a.m. to perform Sewa and that the Sewa went on till about 12

noon. On the basis of the evidence of the said defence

witnesses, the appellant raised the defence that he and his

family were not even present at the place of the incident on

28.04.2013 in the morning at about 10 a.m. when the alleged

incident had occurred.

16. It is this nature of the defence evidence which has

been brought on record and it has to be examined whether the

same is sufficient to rebut the presumption against the

appellant in the present case on applying the test of

preponderance of probabilities. A perusal of the cross-

examination of the two defence witnesses shows that their

version has not been discredited. DW1 has specifically

deposed in respect of the quarrel that took place between the

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appellant and the victim, a day prior to the alleged incident.

Both DW1 and DW2 have deposed about the fact that the

appellant and his family had gone to attend Satsang near

Balapur Naka on National Highway when the alleged incident

had occurred in the present case. The question to be examined

is whether the said evidence did show that the defence raised

by the appellant was probable. A perusal of the impugned

judgment of the trial Court shows that the evidence of DW2,

who stated that he attended the Satsang and Sewa along with

the appellant and his family, has been discarded only on the

ground that the said witness failed to tell names of all persons

who had attended Satsang. A perusal of the evidence of DW2

shows that he had stated that 50 to 60 persons had performed

Sewa at the Satsang and there was presence of 1000 to 1500

persons on the day of the Satsang. In such a situation where

there was a congregation of large number of persons attending

Satsang, it could be hardly expected that the said witness

would be able to tell the name of all the persons who had

attended Satsang. Therefore, the trial Court was clearly not

justified in discarding the evidence of DW2 on this count. The

trial Court further rejected the evidence of DW1 in respect of

the appellant having attended Satsang as the said witness was

unable to tell in cross-examination as to whether the appellant

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was present in the Satsang throughout. On this basis, the

evidence of DW1 was also rejected by the trial Court. But, the

evidence of the said DW1 in respect of the incident of quarrel

that had taken place a day before the incident was not

appreciated at all by the trial Court.

17. A proper analysis of the evidence of the said defence

witnesses would show that the defence raised by the appellant

appears to be probable. As per settled law, the evidence of

defence witnesses is required to be given the same value and

importance as the prosecution witnesses. In the case of

Munishi Prasad .vs. State of Bihar – (2002) 1 Supreme

Court Cases 351, the Hon’ble Supreme Court has held in

paragraph 3 as follows:-

“3. ……………………Before drawing the
curtain on this score, however, we wish to
clarify that the evidence tendered by the
defence witnesses cannot always be termed to
be a tainted one by reason of the factum of
the witnesses being examined by the defence.
The defence witnesses are entitled to equal
respect and treatment as that of the
prosecution. The issue of credibility and
trustworthiness ought also to be attributed to
the defence witnesses on a par with that of
the prosecution— a lapse on the part of the
defence witnesses cannot be differentiated
and be treated differently than that of the
prosecutors’ witnesses.”

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Thus, the evidence of the defence witnesses in the present

case has to be given appropriate importance in examining as to

whether the appellant was able to rebut the presumption under

Section 29 of the POCSO Act on preponderance of probabilities.

18. The said defence raised by the appellant when read

along with the medical evidence would show that the

presumption raised against the appellant in the present case

under Section 29 of the POCSO Act could be said to have been

rebutted on preponderance of probabilities by the appellant. In

the present case, the clothes of the victim did not show any

traces of semen at all. Even the underwear of the victim did

not show any blood or semen. This fact has been brushed

aside by the trial Court only by accepting the contention of the

prosecution that there was strong likelihood of the underwear

having been washed due to which no traces of semen could be

found. But, a perusal of the medical examination report Exh.41

shows that the victim had not changed clothes or taken bath

from the time of the incident till the medical examination and

seizure of the clothes. Therefore, there was no question of the

clothes having been washed due to which no stains of semen

could be found. Apart from this, there was no evidence of any

injuries on the body of the victim or that his clothes were torn

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or there being any other sign of the appellant having forced

himself upon the victim as claimed by the prosecution. These

aspects were not appreciated by the trial Court in the correct

perspective and the rebuttal of presumption on preponderance

of probabilities was not examined while passing the impugned

judgment and order. The trial Court has proceeded on the

basis that the victim was a young boy who would never have

lodged a false report with a serious charge against the

appellant merely because of a small dispute. But, the crucial

aspect in the facts and circumstances of the present case with

the nature of evidence on record was whether the defence had

been able to make out a probable case to rebut the

presumption raised under Section 29 of the POCSO Act.

19. An overall appreciation of the evidence and material

on record in the present case shows that the trial Court was not

justified in convicting and sentencing the appellant for offences

under Section 4 of the POCSO Act and Sections 452 and 377 of

the IPC.

20. In view of the above, the present appeal is allowed.

The impugned judgment and order passed by the trial Court is

set aside and the appellant is acquitted of the charges levelled

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against him. As a consequence, the appellant be released from

custody forthwith unless required in any other case.

(Manish Pitale, J. )

halwai/p.s.

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