Navin Dhaniram Baraiye (In Jail) vs State Of Maharashtra Thr. P.S.O. P.S. ...

Navin Dhaniram Baraiye, aged about 19 years, Occ: Education, R/o Plot No.293, Galli No.7, Jogi Nagar, Rameshwri Road, P.S. Ajni, Nagpur. .. APPELLANT

.. Versus ..

The State of Maharashtra, through P.S.O. , P.S. Ajni, District Nagpur. .. RESPONDENT Mr. R.P. Joshi, Advocate for Appellant.

Mrs. Geeta Tiwari, APP for Respondent

....

CORAM : MANISH PITALE, J.

DATE OF RESERVING JUDGMENT : JUNE 15, 2018.

DATE OF PRONOUNCING JUDGMENT : JUNE 25, 2018

JUDGMENT

1. The appellant herein has challenged his conviction under Section 377 of the Indian Penal Code (IPC) read with Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentence of rigorous imprisonment of 7 years and fine of Rs.5000/- imposed upon ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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him by the impugned judgment and order dated 29.07.2017 passed by the Court of Additional Sessions Judge, Nagpur (trial Court) in Special POCSO Case No. 218/2016.

2. The prosecution case is that the complainant Sarika (PW1) lodged a report against the appellant in Police Station on 18.06.2016 stating that on the same day when she was watching television at home at about 4 p.m. , her son (one of the victims and hereinafter referred to as "victim no.1") had gone to her sister's adjoining house for playing. When she went there, she found that her son was playing with his friend (the other victim in the present case and hereinafter referred to as "victim no.2"), who was the son of the neighbor Bharti (PW3). It was claimed that when the complainant PW1 went again to see her son, upon opening the door she found that her son was lying on the bed with his pant down and that his aforesaid friend was sitting on him and he had also removed his pant. This shocked the complainant PW1 and she asked her son's friend (victim no.2) as to who had taught him to do such an act, upon which the victim no.2 stated that the appellant had taken him to his house to play mobile game and that he had committed anal sex with him. When the complainant PW1 asked her son (victim no.1), he also allegedly told her that the ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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appellant had committed such an act with him and that too many times over a period of time. Thereafter , the complainant PW1 called the mother of the victim no.2 (Bharti) i.e. PW3 and narrated the incident to her , upon which both the ladies went to the house of the appellant and told the said facts to the mother of the appellant. Thereupon, the appellant was given a beating. The complainant PW1 called police by telephone upon which the Police undertook investigation and registered first information report (FIR) on the same day i.e. 18.06.2016 against the appellant under Section 377 of the IPC and Sections 3, 4, 5(l) (m) and 6 of the POCSO Act. Upon completion of investigation, the Police submitted charge sheet and the Court framed charge against the appellant on 17.10.2016 for having committed offences under Section 377 of the IPC as also Section 5 (l) and (m) of the POCSO Act. In order to prove its case, the prosecution examined eight witnesses. PW1 was the complainant, PW2 was victim no.1, PW2 was Bharti (mother of victim no.2), PW4 was the Doctor who had examined the victims, PW5 was the panch witness for seizure of clothes of the appellant, PW6 was the Police Officer who recorded the complaint/report of the complainant PW1, PW7 was the lady Police Officer in whose presence statements of the two victims were recorded and PW8 was the investigating officer in the ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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present case. Victim no.2 was not examined by the prosecution as a witness, although his statement was recorded by the Police.

3. When the evidence brought by the prosecution against the appellant was put to him while recording his statement under Section 313 of the Code of Criminal Procedure, the appellant claimed that the witnesses had deposed against him due to a dispute between the complainant PW1 and his family. The victims had been medically examined and their medical examination report along with forensic reports were also on record before the trial Court. On the basis of the evidence and material on record, the trial Court found that the prosecution had proved its case against the appellant beyond reasonable doubt and on that basis, by the impugned judgment and order, the trial Court convicted and sentenced the appellant. Aggrieved by the same, the appellant has filed the present appeal.

4. Mr. R.P. Joshi, learned counsel appearing on behalf of the appellant, has contended that the prosecution case is based on a concocted story and that there is lack of evidence on record to sustain the conviction recorded by the trial Court ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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against the appellant. It is contended that other than the evidence of victim no.1, all the other evidence of the material prosecution witnesses is hearsay evidence, which is not of much value. Even the evidence of victim no.1 (PW2) cannot be said to be trustworthy and unimpeachable so as to prove the prosecution case. It is contended that since victim no.1 was a child of tender age, who was susceptible to tutoring, corroboration of his evidence was necessary, which was missing in the present case. It was contended that since the prosecution did not examine victim no.2, although his statement was recorded by the Police, an adverse inference was required to be drawn against the prosecution. It was pointed out that most of the statements made against the appellant by the prosecution witnesses, including the complainant PW1 and victim no.1 (PW2), in their evidence before the Court, were material improvements over what had been stated before the Police after FIR was registered against the appellant. It was also contended that there was no medical evidence to corroborate the claims made by the prosecution and that FIR was registered on 18.06.2018 while the offence was said to have been committed on various occasions between 14.04.2016 and 30.05.2016.

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5. On the basis of the aforesaid, it was contended that the complainant PW1 was perhaps extremely upset upon seeing her son victim no.1 with victim no.2 with their pants down and that in her anger and excitement , she had pressurised victims of tender age to blurt out the name of the appellant, who had no connection with the nature of the allegations made against him. It was also contended that there was a dispute between the parents of the appellant and complaint PW1 in respect of the plot on which the house of the appellant was existing and that, therefore, it was a case of false implication. On this basis, it was pointed out that when the prosecution had failed to prove foundational facts in support of its case, presumption under Section 29 of the POCSO Act could not be raised against the appellant. It was submitted that the evidence in the form of crucial admissions made in cross- examination by the prosecution witnesses was sufficient to show that the presumption stood rebutted. In any case, the prosecution had miserably failed to prove the basic facts required to be proved for raising such a presumption under Section 29 of the POCSO Act. It was also contended that video recording of statements of the victims was not made although under Section 26(4) of the POCSO Act it is mandated that wherever possible the Police Officer shall ensure that the ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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statement of the child is also recorded by audio-video electronic means. It was submitted that even though the said requirement could not be said to be mandatory, it was necessary in the facts and circumstances of the present case, because there was a clear possibility of the complainant PW1 having tutored the victims to make statements before the Police against the appellant, due to the anger and excitement in the mind of complainant PW1 after having seen the victims playing with each other with their pants removed. The learned counsel appearing for the appellant relied upon the following judgments:-

(i) Rahim Beg .vs. The State of U.P.

AIR 1973 Supreme Court 343

(ii) Lallu Manjhi .vs. State of Jharkhand

(2003) 2 Supreme Court Cases 401

(iii) Tameezuddin .vs. State (NCT of Delhi)

(2009) 15 Supreme Court Cases 566

(iv) Babu .vs. State of Kerala

(2010) 9 Supreme Court Cases 189

(v) Radhey Shyam .vs. State of Rajasthan

(2014)5 Supreme Court Cases 389

(vi) Sachin Baliram Kakde .vs. State of Maharashtra

2016 ALL MR (Cri) 4049

(vii) Amol Dudhram Barsagade .vs. State of

Maharashtra

Criminal Appeal No.600/2017 Decided on 23.04.18

(Nagpur Bench )

(viii) John @ Vivek Ramesh Jadhav .vs. State of Mah.

2015 ALL MR (Cri) 4053

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(ix) Ragul .vs. State by Inspector of Police

Criminal Appeal No. 391 of 2016

(Madras High Court)

(x) Sahid Hossain Biswas .vs. State of W.B.

CRA No. 736 of 2016 & C.R.A.N. No.1035/2017

(Calcutta High Court)

6. Per contra, Mrs. Geeta Tiwari, learned Additional Public Prosecutor appearing on behalf of the State, submitted that there was sufficient evidence on record to sustain the conviction granted by the trial Court against the appellant. The evidence of victim no.1 (PW2) was sufficient in itself to prove the prosecution case. It was contended that when a child of tender age had indeed stated before the Court about the involvement of the appellant in the acts in question, the appellant deserved to be convicted and sentenced, as had been done by the trial Court in the impugned judgment and order. It was submitted that the alleged discrepancies and improvements in the statements of material prosecution witnesses did not adversely affect the case of the prosecution and that non-examination of victim no.2 was not fatal to the prosecution case because one of the minor victims i.e. victim no.1 had been examined as prosecution witness no.2 and he had supported the case of the prosecution to the hilt. On this basis, it was contended that when the conduct of the appellant was reprehensible and he had inflicted physical and mental ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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scars on the two victims of tender age, he did not deserve any leniency from the Court. It was contended that merely because evidence of child witness was against the appellant, it's corroboration was not a sine qua non, particularly when the evidence of victim no.1 inspired confidence. The learned APP submitted that under Section 29 of the POCSO Act, presumption operated against the appellant in full force and it was necessary for the appellant to prove the contrary, which he had failed to do in the instant case. On this basis, it was submitted that the appeal deserved to be dismissed.

7. Having heard the learned counsel for the parties, it is clear that the present case has serious implications for both the sides. On the one hand is the case of the prosecution, accepted by the trial Court, that the appellant was indeed guilty of having committed serious offences against the boys of tender age for which he has been convicted. If it is found that the appellant has indeed committed such acts, not only are they reprehensible, but such acts leave scars on the psyche of the children, which are difficult to forget. But, if the appellant has been falsely implicated, it is an equally serious situation because the appellant stands convicted and sentenced to suffer rigorous imprisonment for a period of ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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seven years and upon such conviction and sentence being upheld, the appellant would suffer irreparable damage to his future life and reputation, including the reputation of the entire family of the appellant. Hence, it is necessary to examine the evidence on record in detail to analyse as to whether the findings rendered by the trial Court against the appellant are justified.

8. In the present case, the FIR was registered on 18.06.2016 and the acts alleged to have been perpetrated by the appellant on the two victims were admittedly not of the same date. In fact, even as per the FIR dated 18.06.2016 (Exh.14), the occurrence of offence allegedly committed by the appellant was between 14.04.2016 and 30.05.2016. The report made by the complainant PW1 to the Police by calling on the number "100" was upon having seen the two victims in the aforesaid condition and upon their telling her as also PW3 about the appellant having indulged in sexual acts with them.

Thus, the initiation of action against the appellant was based on the said report of the complainant PW1. In this context, it becomes very important to examine as to what was stated by the complainant, the two victims and PW3 (mother of victim no.2) to the Police when the FIR dated 18.06.2016 was ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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registered and thereafter, when the Police recorded their statements. This is because other than the evidence of victim no.1 (PW2), the statements and evidence of prosecution witnesses PW1 complainant and PW3 are necessarily in the nature of hearsay evidence. The evidence of these witnesses is, therefore, required to be examined closely.

9. The complainant PW1 has stated in her evidence before the Court that when she questioned her son (victim no.1) and his friend (victim no.2) upon finding them in the aforesaid condition on 18.06.2016, both of them stated that the appellant had shown them obscene videos of sexual intercourse and that the appellant had committed unnatural sexual intercourse with them. She has stated about the details of the manner in which the appellant committed such acts with the victims, as stated by the victims to her. It has come on record that the complainant PW1 had given a letter Exh.20 to the Police that not only had the appellant committed such acts with the victims, but he had committed obscene acts with girls, which another boy used to make video recordings of and the younger brother of the appellant used to stand at the door to ensure that nobody would come there. She had also claimed that the appellant had done such acts with the daughter of ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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PW3 and recorded them. There was nothing brought on record by the prosecution to support the said allegations made by the complainant PW1. In the cross-examination, the complainant PW1 has claimed that she had told the Police about the appellant showing obscene videos to the victims but the same did not find mention in her statement to the Police. Such omissions were brought in her cross-examination, demonstrating that material improvements were made by the complainant PW1 in her deposition before the Court. In any case, the evidence of complainant PW1 is in the nature of hearsay evidence because it is based on what the victim allegedly told her.

10. In this situation, the evidence of victim no.1 (PW2) becomes significant. A perusal of the same shows that the said witness has stuck to the version of what happened on 18.06.2016 when his mother saw him and his friend (victim no.2) with their pants pulled down. He also has stated in his examination-in-chief that the appellant used to show him obscene videos and that the appellant had done anal sex with him. About the days when such incidents took place, victim no.1 (PW2) has stated that such acts took place on the day of Fawara as well as kite flying day and when his grandmother ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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was admitted. Being a child it would obviously not be expected that the said witness would give the details of dates on which such incidents had occurred. In the cross-examination, victim no.1 (PW2) has stated that he did not know as to for what purpose victim no.2 sat on him after removing pants on 18.06.2016. He has stated that he had told the Police about the appellant having committed such acts with him three times and that once the appellant had done anal sex with him at his place. He has also stated in his cross-examination that the mother of the appellant used to quarrel with his mother. It is relevant that the prosecution has failed to examine victim no.2.

11. The prosecution examined PW3 who was the mother of victim no.2. The said witness has stated that she was called by the complainant PW1 and told about the bad acts committed by the victims and that when she asked her son i.e. victim no.2 about the same, initially he was frightened and later he named the appellant as the person who had taught him to do such an act. This witness stated that the complainant raised commotion at the house of the appellant and further that the complainant PW1 had quarrels with the surrounding neighbours. It was stated that the place where the said witness was residing, was a slum area and further that she ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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and her husband had filed complaint against PW1 (complainant) as she wanted to involve their daughter in the incident. She has also admitted that she had not personally filed a separate complaint about the incident in question in the present case.

12. The prosecution examined PW4, the Doctor who had examined the victim. The said witness has proved the medical examination reports of the victims. The said witness has stated about nature of injuries that could be found if the victims had indeed suffered unnatural sexual intercourse. But, in the present case injuries were not visible and no old injury was found on the anus of the victims. It was stated that upon perusing the forensic report for the first time in Court, although no semen or blood was detected, as per his opinion, sexual assault on the victims could not be ruled out.

13. The prosecution examined PW6, the Police Officer, who recorded the report given by the complainant PW1 on 18.06.2016. It was stated by this witness that the complainant PW1 had not stated in her oral report that the appellant used to show obscene videos to the victims and that thereafter he used to do the same acts with the victims. It was also stated that ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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the complainant PW1 never stated anything about the day of Fawara and further that the appellant had threatened the victims not to divulge anything about such acts and that he would beat the parents of the victims.

14. PW7 was the Police Officer who recorded the statements of both the victims. This witness has stated that she did not make video recording of statements of the victims although she knew that there was such a requirement because she recorded the statements as per the say of the P.S.O., who did not direct her to make Video recording. She further stated that she did not feel like making video recording. This witness stated that the victims did not state that appellant used to show them obscene videos or that on one occasion the appellant had committed anal sex with the victim no.1 at his place.

15. PW8 is the investigating officer who in his cross- examination has admitted that PW3 Bharti did not state in her statement specifically that her son (victim no.2) had told her that at the time of the alleged incident he had removed his pant. He further admitted that PW3 Bharti did not state that initially her son was frightened and that her son victim no.2 ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:18 :::

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told her that they had removed pants at the time of playing.

16. Therefore, this was a nature of the evidence of the prosecution witnesses before the trial Court. In cases concerning offences under the POCSO Act, the sheet anchor of the arguments made on behalf of the State is the presumption that operates against the accused under Section 29 of the POCSO Act. It is contended in cases pertaining to the POCSO Act, as contended in the present case by the learned APP on behalf of the respondent-State, that the Court has to presume that the accused has committed the offence for which he is charged under the said Act, unless the contrary is proved. On this basis, it is submitted on behalf of the respondent-State that in the present case, it was for the appellant to have proved to the contrary and that the burden was entirely upon him, which he had failed to discharge and that, therefore, the conviction and sentence imposed by the trial Court could not be disturbed.

17. In this backdrop, it is first necessary to examine the effect of presumption under Section 29 of the POCSO Act and the manner in which the accused could rebut such presumption. Section 29 of the POCSO Act reads as follows:-

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"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."

A perusal of the above quoted provision does show that it is for the accused to prove the contrary and in case he fails to do so, the presumption would operate against him leading to his conviction under the provisions of the POCSO Act. It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate. Otherwise, all that the prosecution would be required to do is to file a charge sheet against the accused under the provisions of the said Act and then claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO Act cannot be accepted as it would ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

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clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.

18. The manner in which a presumption would operate against an accused has been analysed and deliberated upon by Courts because such a presumption is also provided for in various statues, including the Prevention of Corruption Act, 1988. In the case of Babu .vs. State of Kerala (supra), while examining as to in what manner presumption under a statute would operate against the accused, the Hon'ble Supreme Court has held as follows:-

"(IV) Burden of Proof and Doctrine of

Innocence

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 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

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when certain foundational facts are

established by the prosecution. There may be

difficulty in proving a negative fact.

28. 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)."

19. In the case of Sachin Baliram Kakde .vs. State of Maharashtra (supra), this Court in the context of presumption under Section 29 of the POCSO Act, after quoting the said provision, has held as follows:-

"18. 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.

19. The presumption, however, cannot be

said to be irrebuttable. In-fact, no

presumption is irrebuttable 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.

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20. 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."

20. In a recent judgment, again in the context of presumption under Section 29 of the POCSO Act, in the case of Amol Dudhram Barsagade .vs. State of Maharashtra (supra), this Court has held as follows:-

"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."

21. In this context after quoting and referring to presumption under Section 29 of the POCSO Act, the Calcutta ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

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High Court in the case of Sahid Hossain Biswas .vs. State of West Bengal (supra) has held as follows:-

"23. A conjoint reading of the statutory

provision in the light of the definitions, as

aforesaid, would show 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.

Yelamarti Satyam, (1972) 4 SCC 562, Para-15].

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.

24. 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 in his favour. The

accused may achieve such an end by leading

defence evidence or by discrediting

prosecution witnesses through effective cross-

examination 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

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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, howsoever,

patently absurd or inherently improbable it

may be."

22. The aforesaid view of the Calcutta High Court has been relied upon by the Madras High Court in the case of Ragul .vs. State (supra).

23. The above quoted views of the Courts elucidate the position of law insofar as presumption under Section 29 of the POCSO Act is concerned. It becomes clear that although the provision states that the Court shall presume that the accused has committed the offence for which he is charged under the POCSO Act, unless the contrary is proved, the presumption would operate only upon the prosecution first proving foundational facts against the accused, beyond reasonable doubt. Unless the prosecution is able to prove foundational facts in the context of the allegations made against the accused under the POCSO Act, the presumption under Section ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

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29 of the said Act would not operate against the accused. Even if the prosecution establishes such facts and the presumption is raised against the accused, he can rebut the same either by discrediting prosecution witnesses through cross-examination demonstrating that the prosecution case is improbable or absurd or the accused could lead evidence to prove his defence, in order to rebut the presumption. In either case, the accused is required to rebut the presumption on the touchstone of preponderance of probability.

24. Keeping the aforesaid position of law in mind, the evidence of the prosecution witnesses in the present case will have to be examined. PW1 in the present case was the complainant, being the mother of victim no.1 and PW3 was the mother of victim no.2. Both these witnesses are not eyewitnesses to any of the acts attributed to the appellant in the present case. In fact, the nature of their evidence is such that it is clearly hearsay evidence. These witnesses have claimed that both the victims told them about the alleged acts of the appellant, which were done between 14.04.2016 and 30.05.2016, when PW1 complainant saw the two victims on 18.06.2016 playing together with their pants removed. Thus, the evidence of the aforesaid two witnesses is only hearsay ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

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evidence.

25. The prosecution chose to examine only victim no.1 and victim no.2 was not examined, although his statement was recorded by the Police. Therefore, it is only the evidence of PW2 (victim no.1), which could be said to be direct evidence in support of the prosecution case. It is undisputed that the victim no.1 (PW2) was a boy of tender age when the alleged incidents took place and he was still of tender age when his evidence was recorded in Court. Being a child witness of tender age and the sole direct witness in support of the prosecution case, the evidence of the said PW2 has to be evaluated with great care and circumspection. In this context, the Hon'ble Supreme Court in the case of Radhey Shyam .vs.

State of Rajasthan (supra) has held as follows:-

"12. In Panchhi, (1998 SCC (Cri) 1561) after

reiterating the same principles, this Court

observed that the evidence of a child witness

must be evaluated more carefully and with

greater circumspection because a child is

susceptible to be swayed by what others tell

him and, thus, a child witness is an easy prey

to tutoring. This Court further observed that

the courts have held that the evidence of a

child witness must find adequate

corroboration before it is relied upon. But, it is

more a rule of practical wisdom than of law. It

is not necessary to refer to other judgments

cited by learned counsel because they

reiterate the same principles. The conclusion

which can be deduced from the relevant

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25 apeal406-17.odt

pronouncements of this Court is that the

evidence of a child witness must be subjected

to close scrutiny to rule out the possibility of

tutoring. It can be relied upon if the court finds

that the child witness has sufficient

intelligence and understanding of the

obligation of an oath. As a matter of caution,

the court must find adequate corroboration to

the child witness's evidence. If found, reliable

and truthful and corroborated by other

evidence on record, it can be accepted without

hesitation. We will scrutinize PW-2 Banwari's

evidence in light of the above principles."

26. It has been further held in the case of Lallu Manjhi and another .vs. State of Jharkhand (supra) by the Hon'ble Supreme Court as follows:-

"10. The Law of Evidence does not require

any particular number of witnesses to be

examined in proof of a given fact. However,

faced with the testimony of a single witness,

the Court may classify the oral testimony into

three categories, namely (i) wholly reliable,

(ii) wholly unreliable, and (iii) neither wholly

reliable nor wholly unreliable. In the first two

categories there may be no difficulty in

accepting or discarding the testimony of the

single witness. The difficulty arises in the third

category of cases. The court has to be

circumspect and has to look for corroboration

in material particulars by reliable testimony,

direct or circumstantial, before acting upon

testimony of a single witness. {See - Vadivelu

Thevan etc. v. State of Madras, AIR 1957 SC

614}."

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26 apeal406-17.odt

witness, it will have to be first examined as to under which category would the testimony of PW2 (victim no.1) fall in the present case. If the testimony is found to be wholly reliable, there would be no necessity of corroboration and if it was found to be wholly unreliable, it would have to be discarded.

But, if it was found neither wholly reliable nor wholly unreliable, it would definitely require corroboration. A close scrutiny of the evidence of PW2 (victim no.1) in the present case shows that although in the examination-in-chief this witness has stated that upon his mother i.e. the complainant asking him, he had told that the appellant had indulged in anal sex with him many times, he also stated that the appellant used to call him to his house to show him obscene videos on the mobile and he used to indulge in the aforesaid activity, but, in cross-examination omissions have come on record and when read with the evidence of PW7, the Police Officer who recorded the statement of the said child witness PW2, it has come on record that PW2 never stated in his statement before the Police that the appellant used to show obscene videos or that he had indulged in anal sex with PW2 at his home. This demonstrates that there are material improvements made in the evidence given by the lone child witness in the present case.

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28. Apart from this, this witness has not stated in detail about when the appellant had indulged in the alleged acts of anal sex. There are no details about any days or dates or places where such activity was undertaken. It is understandable that since the witness is a child witness of tender age, such details may not be expected, but some amount of specificity in the evidence would be required. When this is considered with the other evidence on record, it appears that the aforesaid child witness PW2 and the victim no.2 both came under tremendous pressure when the complainant PW1 saw them on 18.06.2016, allegedly with their pants removed and that upon being put questions, they named the appellant and attributed certain acts to him. In this backdrop, it was crucial that victim no.2 should have been examined by the prosecution in support of its case. But, this was not done. This becomes all the more significant when the investigating officer (PW8) admitted in cross-examination that PW3- mother of victim no.2 had not stated in her statement before the Police that her son (victim no.2) had told her that he had removed his pant at the time of the incident and that victim no.2 did not name the appellant. It has also come in the evidence of other prosecution witnesses that there was indeed a quarrel between the parents of the appellant and the complainant PW1 in ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

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respect of dispute concerning plot on which the house of the appellant existed.

29. The medical evidence in the present case is also of no assistance to the prosecution because FIR was registered on 18.06.2016 while the alleged acts were committed by the appellant between 14.04.2016 and 30.05.2016. The Doctor PW4 has stated in his evidence that there was no fresh injury on the victims and this was clear from the medical examination report also, wherein it was clearly stated that no fresh injury was found on the anus of the victims. Yet, the Doctor PW4 stated in the report that possibility of unnatural sexual assault could not be ruled out. The final opinion was reserved by the said witness pending receipt of F.S.L. reports. These reports were seen for the first time in the Court by the Doctor PW4.

These reports demonstrated that no semen or blood or tissue was detected and yet the said witness stated in Court that as per his opinion sexual assault on the victim could not be ruled out. As the case of the prosecution itself was that the alleged acts were committed by the appellant between 14.04.2016 and 30.05.2016, while the FIR was registered on 18.06.2016 upon which the victims were medically examined, there was remote possibility of traces of medical evidence regarding unnatural ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

29 apeal406-17.odt

sexual assault on the victims. The Doctor PW4 clearly stated in his evidence about the nature of injuries that could be found if there was unnatural sexual intercourse. But, he himself stated that such injuries may subside after 7 days. Therefore, there was clearly no medical evidence in the present case to demonstrate that the victims had suffered unnatural sexual assault.

30. Therefore, the only evidence in the present case was that of the child witness PW2 (victim no.1). Applying the aforesaid principles governing the manner in which the evidence of a solitary child witness is to be analysed and accepted in a criminal trial, it becomes evident that corroboration was required from other evidence and material on record. It is clear that PW1 complainant and PW3 mother of victim no.2, were both deposing on information allegedly given by the victims, rendering their evidence as hearsay evidence.

There was no other prosecution witness who could support the statement of the child witness PW2 (victim no.1). The medical evidence on record did not show any corroboration of unnatural sexual assault on the victims and the evidence of PW6 and PW7 Police Officers who recorded the statements of the complainant and those of the victims, demonstrated that ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

30 apeal406-17.odt

neither the complainant nor the victims had stated in their first statements made to the Police about the appellant having shown obscene videos to the victims. It has also come on record that the victim no.1 (PW2) did not state to the Police in the first instance that the appellant on one occasion had committed anal sex with him in his house or that the appellant used to show obscene videos of girls and boys to the victims.

This creates serious doubt about veracity of the statements made by the child witness (PW2) and it appears that he has made statements on being told to do so.

31. In this context, the submission made on behalf of the appellant about necessity of video recording of the statement of child victims in cases under POCSO Act, assumes significance. In fact, Section 26 of the POCSO Act provides for certain safeguards while recording the statement of the child witness. The said provision reads as follows:-

"26. Additional provisions regarding statement

to be recorded-

(1) The Magistrate or the police officer, as the

case may be, shall record the statement as

spoken by the child in the presence of the

parents of the child or any other person in

whom the child has trust or confidence.

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31 apeal406-17.odt

(2) Wherever necessary, the Magistrate or the

police officer, as the case may be, make take

the assistance of a translator or an interpreter,

having such qualifications, experience and on

payment of such fees as may be prescribed,

while recording the statement of the child.

(3) The Magistrate or the police officer, as

the case may be, may, in the case of a child

having a mental or physical disability, seek

the assistance of a special educator or any

person familiar with the manner of

communication of the child or an expert in

that field, having such qualifications,

experience and on payment of such fees as

may be prescribed, to record the statement of

the child.

(4) Wherever possible, the Magistrate or the

police officer, as the case may be, shall ensure

that the statement of the child is also recorded

by audio-video electronic means."

32. A bare reading of the aforesaid provision shows that under Section 26(4) of the POCSO Act , video recording of statement of the child is not mandatory because the words "wherever possible" have been used in the said provision. But, it would be certainly advisable that wherever it is possible and provision is available for video recording, the statement of a child victim in cases under the POCSO Act ought to be recorded by audio-video electronic means also. This would work both ways, on the one hand it would demonstrate that the child is indeed stating facts on his/her own volition and on the other ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

32 apeal406-17.odt

hand it would also show whether the child victim is being prodded or tutored by anybody to make statement before the Police. This would be of assistance to the Court while deciding cases under the POCSO Act.

33. In the present case, the evidence of PW7 shows that she did not make video recording of the statements of the victims, although she was knowing that there was such a requirement. The said witness has stated that she recorded the statement of the victims in the present case as per the direction of P.S.O. and he did not direct the said witness to make video recording. This witness further stated that she did not personally feel that she should make video recording of the statements of the victims. It has nowhere come on record that video recording in the present case was not undertaken because facility of audio-video electronic means was not available. If such recording by audio-video electronic means had been made in the present case, it would clearly have been of assistance to the Court while examining the evidence of the solitary child witness (PW2) who had deposed in support of the prosecution story in the present case. As a result, the evidence of the said child witness PW2 has to be analysed by the Court on the basis of his evidence and cross-examination read with ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

33 apeal406-17.odt

the evidence of PW7, the Police Officer who recorded the statement of the said child witness (PW2) on 19.06.2016, a day after the FIR was registered on 18.06.2016.

34. A reading of the evidence of the said two witnesses shows that it would not be safe to rely upon the sole testimony of the child witness PW2 to convict the appellant in the present case. There is no corroboration to the evidence of the said child witness PW2 and the evidence of other prosecution witnesses has also been discredited by the defence in cross- examination. As there is no medical evidence on record to support the theory of the prosecution that the victims were subjected to unnatural sexual intercourse by the appellant, it becomes difficult to uphold the conviction granted by the trial Court against the appellant.

35. A proper analysis of the evidence of the prosecution witnesses and the medical evidence brought on record by the prosecution shows that the foundational facts necessary in the present case to raise presumption under Section 29 of the POCSO Act, have not been established beyond reasonable doubt by the prosecution. The defence has been able to demonstrate that the prosecution story cannot be believed and ::: Uploaded on - 25/06/2018 ::: Downloaded on - 26/06/2018 01:47:19 :::

34 apeal406-17.odt

that, therefore, the presumption would not operate. A dispassionate analysis of the evidence and material on record also demonstrates that the present case could be a case of false implication or a complete misunderstanding of the situation by the complainant PW1 who seemed to jump to conclusions by making allegations against the appellant and thereafter making statements in the evidence which were material improvements over her own statements made to the Police. In this backdrop, it would be unsafe to hold that the prosecution had proved its case against the appellant under the provisions of the POCSO Act or even under Section 377 of the IPC.

36. In the light of the above, the instant 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. Consequently, the appellant shall be released from custody forthwith, if not required in any other case.

(Manish Pitale, J. )

...

halwai/p.s.

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