MANU/MH/1751/2018

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 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 house, the appellant entered the same, closed the door and caught hold of the victim. Thereafter the appellant took of 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 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.

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 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 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 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 - MANU/SC/2881/2006 : (2006) 6 Supreme Court Cases 39, the Hon'ble 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 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 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 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 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 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 - MANU/SC/0625/2001 : (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."

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 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 against him. As a consequence, the appellant be released from custody forthwith unless required in any other case.