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Judgment
1] The appellant herein has been convicted by the impugned judgment and order under Section 397(2)(i) of the Indian Penal Code (IPC) and under
Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2002 (POCSO Act) and he has been sentenced to suffer rigorous
imprisonment for 12 years and to pay fine of Rs. 5000/Â on both counts, both the sentences to run concurrently. The impugned judgment and order
has been passed by the Court of Additional Sessions Judge, Chandrapur (trial Court) in Special Child Case No.24 of 2013.
2] The prosecution of the appellant under the aforesaid provisions of IPC and POCSO Act was initiated on a report lodged by (PWÂ1) Rama
Ramteke on 08Â05Â2013 in Police Station Chandrapur City. It was claimed in the oral report made to the Police by (PWÂ1) complainant that on
08Â05Â2013 at about 11.00 am, her daughter, the victim (PWÂ2) herein told her that the appellant called her to his house offering bread and
thereafter, he removed her Bermuda and licked her private part and that when he removed his pant, she (PWÂ2) shouted, upon which one Padma
Gajjawar came there, due to which the appellant gave the bread to her and she rushed back to her house. On this basis, a First Information Report
(FIR) was registered against the appellant under Sections 354ÂA (1), 504 and 506 of the IPC. Upon investigation by the Investigating Officer (PWÂ‐
6), chargeÂsheet was submitted against the appellant and on 31Â05Â2014, charge was framed against the appellant under Section 9(m) of the
POCSO Act as also under Sections 354ÂB, 506 and 504 of the IPC. Later, on 19Â03Â2015, fresh charge was framed against the appellant under
Sections 5 and 6 of the POCSO Act and Section 376 (2)(i) of the IPC.
3] In order to prove its case, the prosecution examined eight witnesses. The material witnesses were (PWÂ1) complainant, (PWÂ2) victim, (PWÂ3)
Anita (neighbour), (PWÂ4) Dr. Madhvi Ramteke and (PWÂ6) Investigating Officer. After recording the evidence of prosecution witnesses,
statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein he stated that he was falsely implicated
by the (PWÂ1) complainant because she was under the impression that he had given information to the Police about the business of liquor done by the
(PWÂ1) complainant.
4] On the basis of the evidence and material placed on record by the prosecution, the trial Court found the appellant guilty of the charge levelled
against him and on that basis convicted and sentenced the appellant. Being aggrieved by the same, the appellant has filed this appeal.
5] Shri R.M. Tahaliyani and Shri J.S. Chilotra, Counsel, appearing on behalf of the appellant have submitted that the evidence placed on record by the
prosecution was not sufficient to prove its case against the appellant. It was submitted that the prosecution had failed to prove foundational facts and
that therefore, presumption under Section 29 of the POCSO Act could not have been applied by the trial Court in order to convict the appellant. It was
pointed out that the evidence of the victim (PWÂ2) was not sufficient to prove the guilt of the appellant because in cross examination the said witness
had contradicted her own statement made in the examinationÂinÂchief. It was also pointed out that there was sufficient material to show that there
was enmity between (PWÂ1) complainant and the appellant and that she had falsely implicated him. On this basis, it was contended that the appeal
deserved to be allowed.
6] The learned Counsel relied upon the judgments of this Court rendered in the case of Sachin vs The State of Maharashtra, reported at 2016 All MR
(Cri.) 4049, Sunil Soma Bhamble vs The State of Maharashtra, reported at 2016 ALL MR (Cri.) 2950 and judgment of the Calcutta High Court in the
case of Sahid Hossain Biswas vs State of West Bengal, passed in C.R.A. No.736 of 2016.
7] On the other hand, Mrs. Geeta Tiwari, learned APP appearing on behalf of the State, submitted that when the (PWÂ2) victim had himself deposed
before the Court and stated about the manner in which the appellant had inflicted sexual abuse on her, there was sufficient material to raise
presumption under Section 29 of the POCSO Act against the appellant. It was contended that the evidence of the sole child witness corroborated by
the evidence of other prosecution witnesses was sufficient to prove the guilt of the appellant. It was submitted that the appellant had failed to rebut the
presumption even on preponderance of probabilities. On this basis, the learned APP submitted that the appeal deserved to be dismissed.
8] The learned APP relied upon the judgment of this Court in the case of Mangesh s/o Damodhar Chandankhede vs State of Maharashtra, reported at
2018 All MR (Cri.) 403, judgment of High Court of Chhattisgarh in the case of Ram Bhagat vs State of M P, reported at 2011 (1) CgLJ 27 and
judgment of Delhi High Court in the case of Boby vs State (NCT of Delhi), reported at 2017 ALL MR (Cri.)(Jou) 232.
9] Having heard the learned Counsel for the parties and upon perusal of the impugned judgment and order of the trial Court, it becomes evident that
the main ground on the basis of which the appellant has been convicted is that presumption under Section 29 of the POCSO Act operated against him
in full force, which he had failed to rebut in the facts and circumstances of the present case. Therefore, it becomes necessary to examine as to what
would be the extent to which the aforesaid presumption would operate against accused charged with offences under provisions of the POCSO Act.
10] Although a presumption under Section 29 of the POCSO Act arises and it is presumed that the accused has committed the offence for which he is
charged under the said Act, unless the contrary is proved, such a presumption cannot be absolute. Therefore, there can be no doubt about the
proposition that no presumption is absolute and that every presumption is rebuttable. In the case of Babu vs State of Kerala, reported at (2010) 9 SCC
189, the Hon'ble Supreme Court has held as follows: Â
“27. 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 the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the
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, Rajesh Ranjan Yadav v. CBI, Noor Aga v. State of Punjab and Krishna
Janardhan Bhat v. Dattatraya G. Hegde.â€
11] In the case of Sachin (supra), this Court after quoting Section 29 of the POCSO Act has held as follows: Â
“17. Thus, when a person is prosecuted for commission of the offence specified in the said section, the court is required to presume that the said
person has committed the said offence unless the contrary is proved.
The presumption, however, cannot be said to be irrebuttable. InÂfact, no presumption is irrefutable in law, as this cannot be equated with
conclusive proof. The provisions of section 29 of the POCSO Act mandates the Court to draw the presumption unless contrary is proved.
One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law; they fly in a twilight but vanish in the light of facts.â€
12] In the judgment of the Calcutta High Court relied upon by the Counsel appearing on behalf of the appellant in the case of Sahid (supra), it has
been held as follows: Â
“23. A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would shows that in a prosecution under the POCSO
Act an accused is to prove 'the contrary', that is, he has to prove that he has not committed the offence and he is innocent. It is trite law that negative
cannot be proved [see Sait Tarajee Khimchand vs. Yalamarti Satyam, MANU/SC/0022/1971: (1972) 4 SCC 562, ParaÂ15]. In order to prove a
contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational
facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the
accused to prove the contrary.
Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from
the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence
would most probably draw an inference of innocence of his favour. The accused may achieve such an end by leading defence evidence or by
discrediting prosecution witnesses through effective crossÂexamination or by exposing the patent absurdities or inherent infirmities in their version by
an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to
be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the
light of the special features of a particular case, eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched
enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case while determining whether the
accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to
mechanically accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, however, patently absurd or
inherently improbable it may be.â€
13] The above quoted views of the Courts elucidate the position of law in respect of presumption that arises under Section 29 of the POCSO Act. It
becomes clear that such a presumption would be triggered only upon the prosecution first proving foundational facts of its case against the appellant.
In the absence of cogent evidence to prove such foundational facts, the presumption under Section 29 of the POCSO Act would not operate against
the appellant. Even if such presumption arises, the accused under the provisions of POCSO Act would be entitled to rebut the presumption on
preponderance of probabilities, either by discrediting the prosecution witnesses through effective cross examination or by adducing evidence/witnesses
in support of its defence. With this position of law in mind, the evidence placed on record by the prosecution in the present case needs to be examined.
14] The complainant (PWÂ1) in the present case in her oral report to the Police on the date of incident i.e. on 08Â05Â2013 claimed that her daughter
came to her house after shouting, as the appellant had called her to his house on the pretext of offering bread and that he had done the act that has
been described above. The complainant (PWÂ1) specifically stated in the oral report before the Police that when her daughter (victim) shouted, one
Padma Gajjawar came there, upon which the appellant gave bread to the victim (PWÂ2) and she rushed back to her house. It is significant that the
prosecution has not examined the said Padma Gajjawar, who could have been a material witness in support of the prosecution case. In fact, the
complainant (PWÂ1) claimed that it was Padma Gajjawar who had first informed her about shouting and crying of the victim (PWÂ2). Thus, the
complainant (PWÂ1) herself did not see any part of the incident. A perusal of the deposition of the complainant (PWÂ1) shows that in cross
examination she has stated about having told the Police regarding the appellant having done something else to the private part of the victim (PWÂ2)
upon which she was shivering when she came home. This indicates that there were improvements made by the complainant (PWÂ1) in her deposition
before the Court. In any case her evidence was in the nature of hearsay.
15] Therefore, the most material piece of evidence in the present case was that of the victim (PWÂ2). A perusal of the same shows that although the
said witness did support the prosecution case in her examinationÂinÂchief by stating details of the acts referred to above, in the cross examination she
has given a completely different version. The relevant portion of the cross examination of the victim (PWÂ2), reads as follows: Â
 “9. ....I know Sadhu since earlier. It is true to say that I address him as Mama. I call him as Sadhu. It never happened that I asked for chocolate
or bread from Sadhu. It was never talking to him. He is short tempered. Therefore no young girl or woman from our area talks to him. Since he was
quarreling with everyone, I was also not talking to him. It is not true to say that I also got angry on him. It is not true to say that whenever he used to
call me to give anything I used to run away far. He did not give me chocolate or double Roti till the time of incident. When he called me to give double
Roti, I ran away from him. Then I started crying. At that time Padma Aunti came from nearby house and I went to my house after Pama Aunti went
to her house. I came home and told my mother that Sadhu had called me to give double Roti. He scolded me as I ran away, I cried and I came back
home. Therefore, mother said now we will give his report and she held my hand and took me to the house of Sadhu and said to him why you scolded
my daughter.â€
16] A perusal of the above portion of cross examination of the victim (PWÂ2) shows that she has given details of the incident in a manner which
cannot implicate the appellant for any of the offences for which he has been charged. It appears that the victim (PWÂ2) has stated in her
examinationÂinÂchief what she was tutored to say, but in her cross examination she has come out with a version materially different from that of the
prosecution story. This completely demolishes the prosecution case, which the trial Court has failed to appreciate in the correct perspective.
17] A perusal of the evidence of PWÂ3 (a neighbour) shows that she has turned hostile. She has stated in her cross examination that the complainant
(PWÂ1) was into the business of selling liquor for the past 5 to 6 years and that prior to the oral report which PWÂ1 lodged against the appellant,
there was quarrel between the appellant and complainant (PWÂ1) due to which the brother of the complaint (PWÂ1) had beaten the accused. The
evidence of (PWÂ4) Doctor shows that although there was a tear in the hymen of the victim (PWÂ2), it was not a fresh tear and that there was no
injury seen on forchette. It is significant that the victim (PW2) had been examined on the very day of the incident and that there were no external
injuries suffered by the victim (PWÂ2). The forensic report also did not show any semen in the vaginal swab. A perusal of the evidence of PWÂ6Â‐
Investigating Officer does not bring out any significant material against the appellant.
18] The aforesaid nature of evidence placed on record by the prosecution does not demonstrate that the foundational facts which were necessary for
drawing presumption under Section 29 of the POCSO Act were proved beyond reasonable doubt. The most vital piece of evidence i.e. the testimony
of the child witness (PWÂ2) itself shows that the prosecution case was not made out. There was no medical evidence on record to show that the
victim had suffered sexual intercourse as claimed by the prosecution and there was nothing on record to show that there was any fresh injury to the
private part of the victim (PWÂ2). The evidence of complainant (PWÂ1) was hearsay evidence by its very nature. The neighbour (PWÂ3) had
turned hostile and she had stated in cross examination that there was indeed a quarrel between the complainant (PWÂ1) and the appellant before the
incident in question. It is also significant that the prosecution did not examine Padma Gajjawar, who even according to the oral report submitted by the
appellant, was the person who saw the victim (PWÂ2) crying and she had informed the complainant (PWÂ1) about the incident. The aforesaid nature
of evidence on record clearly demonstrates that the prosecution failed to prove its case and foundational facts against the appellant. As a result, the
presumption under Section 29 of the POCSO Act did not get triggered against the appellant. Even otherwise, there was material on record to indicate
that there was possibility of false implication of the appellant by the complainant (PWÂ1).
19] The aforesaid material shows that the reliance placed by the learned APP on the above said judgments would not assist the prosecution case
because the testimony of the child victim (PWÂ2) in the present case does not inspire confidence and the prosecution has not been able to prove its
case against the appellant. It appears that the trial Court has simply applied presumption under Section 29 of the POCSO Act without first examining
as to whether the prosecution had been able to prove the foundational facts of its case against the appellant. It appears that the trial Court was moved
more by allegations of reprehensible conduct against the appellant and the evidence and material on record was not examined in the proper
perspective, leading to erroneous findings against the appellant.
20] In the light of the above, it becomes evident that the impugned judgment and order passed by the trial Court is not sustainable.
Accordingly, this appeal is allowed and the impugned judgment and order is set aside. The appellant is acquitted of the charge levelled against him.
Consequently, the appellant shall be released from custody forthwith, unless required in any other case.