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Judgment
This is an appeal arising out of conviction and sentence imposed against the appellant under the provisions of the Prevention of Children from
Sexual Offences Act (POCSO).Â
The appellant is the maternal uncle of the mother of the prosecutrix and the accused and the prosecutrix are related to each other. By the impugned
judgment and order dated 28.07.2017, the Court of Special Judge, POCSO Act and Additional Sessions JudgeÂ1, Nagpur (Trial Court) has held in
Special Child Protection Case No.151 of 2014 that the appellant did commit offence under Section 6 read with Section 5(n) of the POCSO Act and
thereby sentenced him to suffer rigorous imprisonment for ten years and to pay fine of Rs.5000/Â.
As per the prosecution case, the incident occurred on 23.07.2014 at about 10.00 a.m. when the prosecutrix went to the house of the appellant
(accused). The said house was adjacent to the house of the prosecutrix and the prosecutrix had allegedly gone there for bringing vegetables. But,
when the prosecutrix went inside the house, the appellant suddenly caught hold of her hand, pressed her mouth, dragged her inside the house and then
took her into the store room where he forcibly indulged in sexual intercourse with her.
The prosecutrix then immediately went back to her house and disclosed the incident to her father, who in turn informed the mother of the
prosecutrix on phone. Thereupon, the mother of the prosecutrix came home and took the prosecutrix to the police for lodging of complaint. On
the basis of the said complaint, First Information Report (F.I.R.) was registered against the appellant in Police Station Gittikhadan, Nagpur for
offences under the provisions of the Indian Penal Code (I.P.C.) and the POCSO Act. The prosecutrix was sent for medical examination and
seizure as well as spot panchanamas were conducted in the presence of panch witnesses by the Investigating Officer (PW9). On the basis of the
investigation and chargeÂsheet submitted by the police, the trial Court framed charges against the appellant under Section 376(2)(f) of the I.P.C. and
Section 6 read with Section 5(n) and (p) of the POCSO Act.
In order to prove its case, the prosecution examined eleven witnesses. These included, PW1ÂProsecutrix, PW2ÂMother of the prosecutrix,
PW3ÂDoctor who examined the prosecutrix, PW4ÂDoctor who examined the appellant (accused), PW5ÂMaternal uncle of the prosecutrix as well
as panch witness for seizure of clothes and blood, PW6ÂFather of the prosecutrix, PW7ÂHeadmistress of the school attended by the prosecutrix,
PW8ÂMaternal grandfather of the prosecutrix and panch witness on spot panchanama, PW9ÂInvestigating Officer who recorded the complaint and
conducted the spot panchanama and PW11ÂHeadmistress of primary school attended by the prosecutrix. Documentary evidence was also brought
on record by the prosecution in the form of medical records as well as F.S.L. report and school leaving certificate to prove the age of the prosecutrix.
On the basis of the oral and documentary evidence on record, the trial Court found that the prosecution had successfully proved that the age of the
prosecutrix at the time of the incident was less then eighteen years and that therefore, she was covered under the definition of “child†under
Section 2(d) of the POCSO Act. It was also found by the trial Court that the medical evidence on record as also the evidence of the prosecutrix,
corroborated by the evidence of other witnesses, conclusively proved the guilt of the appellant. On this basis, the trial Court convicted and
sentenced the appellant in the aforementioned manner. Aggrieved by the said judgment and order, the present appeal has been filed.
Mr. A.Z. Gharde, learned counsel appearing on behalf of the appellant, submitted that the present case was a case of false implication because the
appellant was a person related to the prosecutrix and her mother and that he used to repeatedly scold them for their misbehaviour and unacceptable
behaviour. It was contended that the prosecutrix and her mother had falsely implicated the appellant in order to take revenge for the attitude of the
appellant. The learned counsel vehemently
contended that there was insufficient material on record to prove that the date of birth of the prosecutrix was 03.05.2000, as claimed by her and that
the evidence of the mother, read with the evidence of the headmistress of the two schools attended by the prosecutrix, clearly demonstrated that there
was no cogent evidence to prove the claim of the prosecutrix about her date of birth. On this basis, it was contended that the provisions of the
POCSO Act could not have been applied in the present case.
As regards the merits of the matter, it was contended on behalf of the appellant that the evidence of the prosecutrix was not trustworthy and that
there were material contradictions when it was considered in the context of evidence of the other witnesses. It was contended that a perusal of the
spot panchanama and the map of the spot of incident demonstrated that the claim of the prosecutrix that she was taken to the store room by the
appellant was not believable. The map and the admissions given in evidence by the PW5 demonstrated that there was no direct access to the store
room from the house of the appellant and that if the appellant had to take the prosecutrix to the store room from his house, he would necessarily have
to go outside the house and then enter the store room from the door that opened outside. It is submitted that if this was actually done by the
appellant at about 10.00 a.m. in the morning in the crowded colony of hutments where the incident occurred, the appellant and the prosecutrix would
not have gone unnoticed. On this basis, it was contended that the manner in which the incident was said to have occurred was wholly
unbelievable. It was further contended that the medical evidence in the form of the medical examination report of the prosecutrix and the F.S.L.
report demonstrated that there were no signs of semen or blood on the clothes of the prosecutrix. The report also demonstrated that there was no
semen found in the vaginal swab and further there were no injuries on the genitals or body of the prosecutrix and the appellant. On this basis, it was
contended that the entire prosecution story was a falsehood and that if the prosecutrix had been sexually assaulted by the appellant in the crowded
area where the houses were made only of tinÂsheets, any alarm raised by the prosecutrix would not have gone unnoticed. On this basis, it was
contended that the trial Court judgment deserved to be set aside.
In support of his contentions, the learned counsel appearing on behalf of the appellant relied upon the judgments of the Hon'ble Supreme Court in
the case of Alamelu & Another Versus State (AIR 2011 SC 715), Ravindra Singh Gorkhi Versus State of U.P. (AIR 2006 SC 2157), State
of Rajasthan Versus Babu Meena (AIR 2013 SC 2207).
Per contra, Learned Additional Public Prosecutor Mr.Vishal Gangane appearing on behalf of the State, submitted that the findings of the trial
Court on merits as well as the age of the prosecutrix were based on proper appreciation of the evidence on record and that the impugned judgment
and order passed by the trial Court did not deserve any interference at the hands of this Court. It was submitted that insofar as the question of
proving the date of birth of the prosecutrix was concerned, the school leaving certificate supported by the evidence of the headmistresses of the two
schools attended by the prosecutrix as also the evidence of the prosecutrix and her mother, was sufficient material to prove that the date of birth of
the prosecutrix was indeed 03.05.2000. It was contended that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007,
specifically provided that a certificate of date of birth from the school first attended by a child shall be the conclusive proof of age. It was
contended that since the school leaving certificate in the present case was indeed produced and proved by the prosecution, there could be no doubt
about the aforesaid fact. It was further contended that the prosecutrix had emphatically stated in her evidence that her date of birth was
03.05.20000 to which there was no crossexamination on behalf of the appellant. On this basis, it was contended that the prosecutrix was indeed a
child and the appellant was correctly proceeded against under the provisions of the POCSO Act. It was contended that the prosecutrix had stated
in detail as regards the incident and the manner in which the appellant had indulged in forcible sexual intercourse with her. It was contended that
when the prosecution proved that the prosecutrix was a child at the time of the incident, the presumption under Section 29 of the POCSO Act
operated against the appellant (accused), which he had miserably failed to rebut. On this basis, it was contended that the appeal deserved to be
dismissed. Learned Additional Public Prosecutor relied upon the judgment of the Hon'ble Supreme Court in the case of State of M.P. Versus
Anoop Singh [(2015) 7 SCC 773] and the judgment of the Division Bench of this Court in the case of Kundan Nanaji Pendor Versus The State of
Maharashtra [2017 All M.R. (Cri) 1137].
In order to examine as to whether the trial Court in the present case was justified in convicting and sentencing the appellant (accused) in the
aforesaid manner, it is necessary to consider in detail, the oral and documentary evidence on record. The prosecution examined eleven witnesses of
whom, PW1ÂProsecutrix, PW7Headmistress of the school in which the prosecutrix had studied and PW11ÂHeadmistress of the primary school
which the prosecutrix had attended, are relevant for determining the question of date of birth of the prosecutrix. The other witnesses are relevant
for examining as to whether the prosecution was able to prove its case beyond reasonable doubt against the appellant.
The question of date of birth of the prosecutrix assumes importance in the present case because if the date of birth being 03.05.2000, as claimed
by the prosecutrix, is accepted, she is covered under the definition of “child†under Section 2(d) of the POCSO Act and the presumption under
Section 29 of the said Act comes into operation. As per the said presumption, where a person is prosecuted for committing offences under the
provisions of POCSO Act, the Court has to assume the fact that such acts were committed, unless the contrary stood proved. As a result,
determination of the fact of date of birth of the prosecutrix assumes significance.
The prosecutrix (PW1) in the present case has emphatically stated in her examinationÂinÂchief before the Court that her date of birth was
03.05.2000. On this aspect, she has not been specifically crossexamined on behalf of the defence. In order to prove the said date of birth, a
school leaving certificate pertaining to the prosecutrix has been placed on record. This certificate was issued by a school which the prosecutrix had
attended. In support of the said school leaving certificate, the prosecution has examined PW7ÂHeadmistress of the said school. The said witness
has stated that the date of birth of the prosecutrix was recorded as 03.05.2000 on the basis of the earlier school leaving certificate issued by the school
where the prosecutrix had attended primary classes. It was also conceded in crossÂexamination by the said witness that birth certificate of the
prosecutrix or hospital papers were not produced when the date of birth was recorded in the school records.
The prosecution further examined PW11ÂHeadmistress of the primary school attended by the prosecutrix. The said witness did vouch for the
fact that the prosecutrix had attended the primary school but, in the crossÂexamination, it was admitted that the date of birth of the prosecutrix was
informed by a relative and further that there was no entry of any birth certificate produced by the relatives of the prosecutrix in the original admission
register. It has been submitted on behalf of the appellant that the aforesaid nature of evidence placed on record by the prosecution was not
sufficient to prove that the date of birth of the prosecutrix was 03.05.2000 and that therefore, there was serious doubt about whether the provisions of
POCSO Act applied in the present case at all. It was contended that when PW2ÂMother of the prosecutrix had conceded in the crossÂ‐
examination that she did not handover any gram panchayat document or any other document regarding birth of the prosecutrix to the police, it was
further evident that the aforesaid school leaving certificate of the prosecutrix could not be relied upon to hold that her date of birth was 03.05.2000.
In this regard, Rule 12(3) of the Juvenile Justice (Care and Protection) Rules, 2007, becomes relevant as it pertains to the aspect of determination
of age of a victim of rape. The said rule has been referred to and relied upon by the Hon'ble Supreme Court in the case of State of M.P.Â
Versus Anoop Singh (supra) and it reads as follows:Â
“12.3: In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board
or, as the case may be, the Committee by seeking evidence by obtaining
(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may
be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her
age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be
available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses
(a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.â€
By referring to the aforesaid rule, the Hon'ble Supreme Court has held that the documents like matriculation or equivalent certificates, date of birth
certificate from school first attended and birth certificate issued by Corporation or such Municipal authority can be used for ascertaining the age of the
prosecutrix. In the present case, the prosecution has placed on record school leaving certificate, wherein the date of birth of the prosecutrix has
been stated to be 03.05.2000. Under the aforesaid rule, the said certificate would certainly be covered as one of the documents for ascertaining the
date of birth of the prosecutrix. The prosecution has examined the headmistresses of the primary as well as the subsequent school attended by the
prosecutrix and both of them supported the fact that 03.05.2000 was the date of birth of the prosecutrix as per the school records. The learned
counsel appearing for the appellant has sought to attack the said evidence on the basis that the two headmistresses, i.e. PW7 and PW11 have
conceded to the fact that the date of birth certificate of the prosecutrix issued by a corporation or municipal authority was not on record. But, a
perusal of the aforesaid Rule 12(3) of the Juvenile Justice (Care and Protection) Rules, 2007 shows that it is not only the birth certificate issued by a
corporation or a municipal authority that can be made the basis for ascertaining the date of birth but, certificates issued by school attended by the
prosecutrix can also be used as a basis for determining the date of birth.
In the present case, when such a certificate was placed on record and the headmistresses of the schools attended by the prosecutrix were
examined by the prosecution, it cannot be said that the prosecution had failed to place on record sufficient evidence and material to prove that the date
of birth of the prosecutrix was indeed 03.05.2000. In this regard, the judgment relied upon by the learned counsel appearing on behalf of the
appellant, passed by the Hon'ble Supreme Court in the case of Alamelu Versus State (supra), cannot be of much assistance to the appellant because
in the aforesaid case before the Supreme Court, although transfer certificate issued by the school was placed on record, headmistress of the school
was not examined. It was for this reason that the Hon'ble Supreme Court, held that such a document could not be held to be reliable but, in the
present case since two headmistresses were examined as witnesses by the prosecution to prove the aforesaid school leaving certificate, it cannot be
said that the said judgment of the Hon'ble Supreme Court would be of any assistance to the appellant. Apart from this, learned A.P.P. for the
respondentÂState is justified in relying upon judgment of Division Bench of this Court in the case of Kundan Pendor Versus State (Supra), wherein it
has been held that when the prosecutrix is not crossÂexamined on her statement about date of birth, the claim of the prosecutrix has to be
accepted. In the present case also, the prosecutrix was not crossÂexamined on this aspect. Hence, no fault can be found with the findings
rendered by the trial Court that the provisions of POCSO Act were applicable in the present case because the prosecutrix was a “child†as
defined in Section 2(d) of the said Act.
Once such a conclusion is arrived at, the presumption under Section 29 of the POCSO Act comes into operation and it has to be presumed that the
acts alleged against the appellant (accused) were indeed committed by him until the contrary stood proved. Therefore, the burden becomes heavier
on the defence in such cases. It is required to be examined whether the evidence on record indicated that the appellant (accused) was able to rebut
the presumption to demonstrate that the prosecution case was not made out. The presumption can be rebutted by showing that on preponderance of
probabilities the defence raised by the accused was made out.
Section 29 of POCSO Act reads as follows:
“29. Presumption as to certain offences  Where a person is prosecuted for committing or abetting or attempting to commit any offence under
Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved.â€
The abovequoted provision mandates that unless the accused proves to the contrary, it would be presumed that he has committed offences under the
POCSO Act for which he is prosecuted. But, there can be no doubt about the proposition that no presumption is absolute and that every
presumption is rebuttable. A statutory presumption of this nature can be rebutted by the accused on the touchstone of preponderance of
probabilities. In the case of Babu Versus State of Kerala [(2010) 9 SCC 189], the Hon'ble Supreme Court, while examining as to in what manner
presumption under a statute could operate against the accused has held as follows:Â
Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the
statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity
thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not
lead to any injustice or mistaken conviction. Statutes like Negotiable Instruments Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and
Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those Statutes are found to be fulfilled
and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are
established by the prosecution. There may be difficulty in proving a negative fact.
However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in
exceptional circumstances, such as those of statutes as referred to hereinabove that the burden on proof is on the accused. The statutory provision
even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and
21 of the Constitution. (Vide: Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16; Narendra Singh v. State of M.P., AIR 2004 SC 3249;
Rajesh Ranjan Yadav v. CBI, AIR 2007 SC 451; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417; and Krishna Janardhan Bhat v.
Dattatraya G. Hegde, AIR 2008 SC 1325).â€
In a recent judgment also, in the face of presumption under Section 29 of the POCSO Act, this Court in Amol Dudhram Barsagade Versus State
of Maharashtra, [Criminal Appeal No.600/2017 Decided on 23.04.2018] (Nagpur Bench), held as follows:Â
“5.  The learned Additional Public Prosecutor Shri S.S. Doifode would strenuously contend that the statutory presumption under Section 29 of
the POCSO Act is absolute. The date of birth of the victim 12.10.2001 is duly proved, and is indeed not challenged by the accused, and the victim,
therefore, was a child within the meaning of Section 2(d) of the POCSO Act, is the submission. The submission that the statutory presumption
under Section 29 of the POCSO Act is absolute, must be rejected, if the suggestion is that even if foundational facts are not established, the
prosecution can invoke the statutory presumption. Such an interpretation of Section 29 of the POCSO Act would render the said provision
vulnerable to the vice of unconstitutionality. The statutory presumption would stand activated only if the prosecution proves the foundational facts,
and then, even if the statutory presumption is activated, the burden on the accused is not to rebut the presumption beyond reasonable doubt. Suffice
it if the accused is in a position to create a serious doubt about the veracity of the prosecution case or the accused brings on record material to render
the prosecution version highly improbable.â€
Thus, the presumption that operates under Section 29 of the POCSO Act is not absolute and it is triggered only when the prosecution is able to
prove the foundational facts in the first place. The evidence placed on record by the prosecution is to be examined to first come to the conclusion
that the foundational facts of the prosecution case have been established. The accused can rebut the presumption which then arises, either by
discrediting the prosecution witnesses by effective crossÂexamination or by leading defence evidence. It is in this context that the evidence of the
prosecution in the present case needs to be examined.
In the present case, the prosecutrix had claimed that the appellant (accused), who happened to be the maternal uncle of her mother and who was
living in the adjacent house, had pulled her inside his house and then he had taken her to the store room where he committed the act of forcible sexual
intercourse. The evidence of the prosecutrix (PW1), her maternal aunt (PW5) and her father (PW6) shows that there is no direct access from the
house of the appellant (accused) to the store room where the incident had allegedly occurred. In this connection, the map prepared by the
prosecution while preparing the spot panchanama also becomes relevant. The spot panchanama is at Exhibit 58, which includes the sketch map of
the place of the incident. A perusal of the same shows that there is no direct access from the house of the accused to the store room in question.Â
In fact, the prosecutrix (PW1) in her crossÂexamination has stated to the effect that there are two doors to the house of the accused, one for going to
his house and the other for going to the store room and both doors opened on the outside. The maternal aunt of the prosecutrix, i.e. PW5 has stated
in her crossexamination that it was indeed true that in order to go to the store room of the house of the appellant (accused), the way was from the
front side. The father of the prosecutrix, i.e. PW6 has also clearly stated in his crossexamination that it was true that in order to go to the store room
of the house of the appellant (accused), the way was from the outside and that there was no way from the inside. The aforesaid evidence points
towards the fact that if the incident had actually taken place in the store room, as claimed by the prosecutrix (PW1), the appellant (accused) was
required to take the prosecutrix out of his house from the door and to go around and enter the store room from the door for entering into the store
room. This would necessarily require the appellant (accused) to come out of the house and then enter the store room. Considering that the incident
allegedly took place at about 10.00 a.m. in the morning in a colony of crowded hutments, it is difficult to believe that the appellant (accused) taking the
prosecutrix (PW1) from the house to the store room would have gone unnoticed. Apart from this, PW6 (father of the prosecutrix) had admitted in
the crossÂexamination that there was only a tin sheet between the house of the appellant (accused) and that of the prosecutrix. In such a situation,
any forcible sexual intercourse by the appellant (accused) on the prosecutrix (PW1) would not have gone unnoticed, particularly when the hutments
were located very close to each other. Therefore, there is doubt created about the manner in which the incident is said to have occurred.
Apart from this, the medical evidence on record shows that there was neither any blood nor semen found on the clothes of the prosecutrix. The
medical examination report of the prosecutrix shows that the hymen was found to be torn, but, there were no injuries to the body or the private part of
the prosecutrix. In the crossÂexamination, the doctor (PW4) has conceded that if the tear on the hymen was fresh then she would have written the
said fact in the medical examination report. This leads to the conclusion that the tear in the hymen was not fresh. Although, this may not necessarily
be a clinching point in favour of the defence, but absence of any injuries on the genitals or any other body part of the prosecutrix, coupled with the fact
that the prosecutrix and the appellant could not have reached the store room without coming out of the house of the appellant, demonstrates that
serious doubt is created about the manner in which the incident is said to have occurred in the present case.
In this backdrop, it becomes significant that the maternal aunt of the prosecutrix, i.e. PW5 has stated in crossÂexamination that the appellant
(accused) used to scold the prosecutrix and her mother for various reasons. The appellant has also stated in his statement recorded under Section
313 of Cr.P.C. that he was falsely implicated because he used to scold the prosecutrix and her mother. The appellant (accused) was admittedly the
maternal uncle of the mother of the prosecutrix. It is probable that he would have been scolding the prosecutrix and her mother on certain issues
that have been indicated by the defence. The aforesaid prosecution witnesses, i.e. PW5 and PW6, have indeed admitted this in the crossÂ‐
examination. As the description of the incident of alleged forcible sexual intercourse appears to be doubtful for the reasons mentioned above, it is
probable that the appellant (accused) was sought to be falsely implicated by the prosecutrix and her mother in the present case. The complete
absence of any medical evidence to support the claims of the prosecutrix and the doubt created by the evidence on record as regards the manner in
which the incident was said to have occurred, demonstrates that on preponderance of probabilities, the appellant (accused) has been able to rebut the
presumption under Section 29 of the POCSO Act.
In fact, for the presumption to operate, as observed earlier, it is necessary that the foundational facts are established by the prosecution, which in
the present case, does not appear to have been done by the prosecution. This aspect has not been taken into consideration by the trial Court while
holding against the appellant (accused). The findings rendered by the trial Court on the absence of any hue and cry raised by the prosecutrix as her
family was already under “psychological and economic influence†of the appellant (accused) are also based on mere conjectures. The absence
of an internal access or door to the store room of the appellant (accused) has also been ignored by the trial Court and it has not been appreciated in
the correct perspective while holding that the prosecution story could not be disbelieved.
Thus, on an overall analysis of the evidence and material on record, it becomes clear that the trial Court was not justified in holding that the case
against the appellant (accused) had been proved beyond reasonable doubt and that he deserved to be convicted and sentenced in the aforementioned
manner.
Accordingly, the criminal appeal is allowed. The impugned judgment and order passed by the trial Court is set aside and the appellant (accused)
is acquitted of the charges levelled against him. Consequently, the appellant is directed to be released from the custody forthwith, if not required in any
other case.