Navin Dhaniram Baraiye (In Jail) vs State Of Maharashtra Thr. P.S.O. ...
2018 Latest Caselaw 1245 Bom

                                      1                  apeal406-17.odt        



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR

                      Criminal Appeal No.406/2017
                                   ...


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

2 apeal406-17.odt

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

3 apeal406-17.odt

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

4 apeal406-17.odt

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

5 apeal406-17.odt

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.

6 apeal406-17.odt

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

7 apeal406-17.odt

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





                                8                     apeal406-17.odt        


(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

9 apeal406-17.odt

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

10 apeal406-17.odt

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

11 apeal406-17.odt

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

12 apeal406-17.odt

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

13 apeal406-17.odt

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

14 apeal406-17.odt

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

15 apeal406-17.odt

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

16 apeal406-17.odt

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:-

17 apeal406-17.odt

"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

18 apeal406-17.odt

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

19 apeal406-17.odt

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.

20 apeal406-17.odt

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

21 apeal406-17.odt

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

22 apeal406-17.odt

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

23 apeal406-17.odt

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

24 apeal406-17.odt

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

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}."

27. Applying the aforesaid principles pertaining to

appreciation of evidence of witnesses, particularly a child

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.

27 apeal406-17.odt

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

28 apeal406-17.odt

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

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

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.

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

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

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

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.