Sagar Dinanath Jadhav Vs. State of Maharashtra - (High Court of Bombay) (25 Jun 2018)

No presumption can be absolute; every presumption is rebuttable

MANU/MH/1751/2018

Criminal

The Appellant 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, 1860 (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 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 settled law that, while rebutting the presumption raised against the Appellant, he would have to prove it on preponderance of probabilities. In the case of M.S. Narayana Menon. vs. State of Kerala, 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. No presumption can be absolute and that every presumption is rebuttable.

A perusal of the evidence of the victim PW6 shows that, according to him, when he visited his house on 28th April, 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.

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 POCSO Act. 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. 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.

Relevant : M.S. Narayana Menon. vs. State of Kerala - MANU/SC/2881/2006: (2006) 6 Supreme Court Cases 39

Tags : CONVICTION   PROOF   VALIDITY  

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