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2025 Supreme(Bom) 1734
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S. M. MODAK, J.
XYZ - Appellant
Vs.
Arun Shankar Khutale - Respondent
Criminal Appeal No.1070 of 2021
Decided On : 17-10-2025
Advocate Appeared:
For the Appellant : Mr. Jayant Bardeskar a/w Mr. Deepak Kurne
For the Respondent: Ms. Anjali Patil a/w Mr. Tohid Shaikh, Mr. H. J. Dedhia
Presumptions under the POCSO Act require foundational facts to be proven; without direct evidence, mere hearsay is insufficient for conviction.
Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Sections 8, 12, 29, and 30 - Indian Penal Code, 1860 - Section 354 - Acquittal of accused under POCSO and IPC provisions - Appeal regarding evidentiary value of victim's disclosure to mother and statement recorded under Section 164 of Cr.P.C. - Presumption under Sections 29 and 30 POCSO Act discussed. (Paras 1, 5, 6, 10, 15, 18, 20)
(B) The prosecution must provide foundational facts to invoke presumptions under POCSO, which were not established in this case. (Paras 6, 7, 14, 22)
Facts of the case:
Mother of the victim challenged acquittal of accused (known family) regarding sexual assault of her minor daughter. The victim, who was 15, died prior to trial, rendering her testimony unavailable. (Paras 1, 2, 8)
Findings of Court:
Lack of direct and corroborative evidence to establish guilt of the accused; trial court’s conclusions were reasonable. (Paras 10, 21)
Issues: The appeal addressed the evidentiary value of hearsay statements by the mother, the admissibility of the victim's prior statements, and the interpretation of statutory presumptions under POCSO. (Paras 4, 15)
Ratio Decidendi: The court maintained that without substantial evidence directly connecting the accused to the incident, acquittal was appropriate; mere hearsay does not suffice for guilt. (Paras 16, 20)
Result: Criminal Appeal dismissed.
| Table of Content |
|---|
| 1. request for appeal against acquittal (Para 1 , 2 , 3) |
| 2. evidentiary issues regarding presumptions (Para 4 , 5 , 6) |
| 3. prosecution's case overview and witness accounts (Para 8 , 9 , 10) |
| 4. defense arguments and cross-examinations (Para 12 , 13 , 14) |
| 5. assessment of evidence and legal standing (Para 16 , 17 , 18 , 19) |
| 6. dismissal of appeal confirmation (Para 20 , 21) |
JUDGMENT :-
S. M. MODAK, J.
1. The Appellant (the mother of the victim, who is a minor girl) is 2025.11.04 +0530 aggrieved by the judgment of acquittal pronounced by the Special Judge under the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”, hereinafter) Greater Mumbai, on 27th August 2021. She intends to challenge the said judgment. The offences are under Section 354 of the INDIAN PENAL CODE , 1860 (“IPC, for short”) and under Sections 8 and 12 of the POCSO Act. The case is registered as POCSO CASE NO. 712 of 2018.
2. This is a case instituted on a police report. The Appellant has sought for leave to prefer an Appeal. The First-Informant being the mother of the victim has also to be treated as a victim. With consent, I have heard learned Advocate Shri Bardeskar for the Appellant and learned Advocate Ms. Anjali Patil for Respondent No.1/Accused and learned APP. The Appeal is taken up for final hearing at an admission stage. Leave granted. Admit the appeal, copies of evidence is already on record.
3. It is an admitted fact that at the time of giving of evidence, the victim was not available as she died on 12th May 2019. There are two witnesses examined on behalf of the prosecution. They are:-
(i) PW No.1 – Mother of the victim and
(ii) PW No.2 – The Investigating Officer.
4. The defense of the accused is that of denial and false implication. He has also taken a defense of ‘alibi’. To prove the same, he has examined Head Constable–Dayanand Alkunte. The trial Court acquitted the Accused. The points which are raised in this Appeal are as follows:-
(a) The statement recorded of the victim as per the provisions of Section 164 of Cr.P.C., whether it can be considered as an evidence when the victim is not available for evidence?
(b) The facts stated by the victim to her mother immediately after the happening of the incident, whether it can be considered as an evidence and its effect?
(c) Whether the presumption under Sections 29 and 30 of the POCSO Act is of any help to the prosecution?
(d) Whether the trial Court was right in accepting the evidence on the point of ‘alibi’?
(e) Whether the judgment requires interference?
Presumptions under Sections 29 and 30 of POCSO Act
5. The learned trial court Judge in para no. 6 of the impugned judgment has given categorical findings about applicability of the provisions of the POCSO Act because victim girl is of 15 years old and she was minor and even the learned Judge has referred about the presumption under Section 29 of the POCSO Act. This is rebuttal presumption.
6. The learned Judge observed, ‘if the foundational facts are proved then presumption comes into picture’. The learned Judge observed “accused has adduced evidence to rebut the presumption”. According to learned Advocate Mr. Bardeskar this finding is incorrect. He tried to point out lacunae in the evidence of the defence witnesses. The Section of the POCSO Act which is invoked is Section 8 . It describes the punishment for sexual assault. Meaning is given in Section 7 of the said Act. Whereas Section 29 lays down the presumption which can be invoked when there are offences under Sections mentioned therein. The offence which are mentioned are Sections 3 , 5, 7 and 9. There is no mention of read with in . So the presumption under will not come into picture.
7. Section 30 of the said Act refers to presumption of culpable mental state. Any of the offence under POCSO Act is not specifically mentioned therein. The offences which requires culpable mental state, if invoked, then this Section comes into picture. Section 7 lays down “any act done wit
