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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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