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2019 Supreme(Guj) 1042
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BELA M. TRIVEDI, A.C. RAO, JJ.
Laljibhai Kadabhai Algotar (Scheduled Caste) - Appellant
Versus
State of Gujarat - Respondent
Criminal Appeal No. 374 of 2015
Decided On : 25-10-2019
Advocate Appeared:
For the Appellant :Mr. Jay M Thakkar (6677), Advocate
For the Respondent: Ms CM Shah, App (2)
Point of Law
There can be no doubt that there is an initial presumption which favours the complainant. Section 29 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of deterrent effect of the Act.
Headnote:
Code of Criminal Procedure, 1973 – Section 374(2) – Protection of Children from Sexual Offences Act – Challenging the legality and validity of the judgment and order of conviction and sentence – Held, Once a charge has been laid against the person under the aforesaid provisions of the POCSO Act, the actual presumption shall be against the accused unless the accused proved the contrary. Therefore, the burden of proving the contrary against the statutory presumption under Section 29 of the POCSO Act shall lie only on the shoulder of the accused. Unless he rebuts the same by disproving such presumption, the statutory presumption shall always be against such accused – Prosecution has proved the case beyond reasonable doubt that the accused has committed offence under section 377 of IPC and u/s 4 of POCSO Act – Appeal dismissed.
Facts of the Case:
complainant – Mr.S.K. Pujara, Chair Person of Child Welfare Committee, Surendranagar recorded statement of the victim, who at the relevant time was aged 12 years. In the said statement, the minor victim has stated that the accused has committed the offence of of unnatural act twice with him in Ashramshala (school). On the basis of the said statement, the complainant – Chairperson ordered that the victim personally appeared before the Child Welfare Committee, Surendranagar on Friday, 14/2/2019. He had given statement that Laljibhai who is friend of the Manubhai - teacher of Ashram Shala run and managed by Scheduled Tribes has committed offence of unnatural act with him and has abused him physically.
Finding of the Court:
Once a charge has been laid against the person under the aforesaid provisions of the POCSO Act, the actual presumption shall be against the accused unless the accused proved the contrary. Therefore, the burden of proving the contrary against the statutory presumption under Section 29 of the POCSO Act shall lie only on the shoulder of the accused. Unless he rebuts the same by disproving such presumption, the statutory presumption shall always be against such accused – Prosecution has proved the case beyond reasonable doubt that the accused has committed offence under section 377 of IPC and u/s 4 of POCSO Act.
Result: Appeal dismissed
JUDGMENT :
A.C. RAO, J.
1. This Criminal Appeal has been preferred by the appellant – original accused under section 374(2) of the Code of Criminal Procedure, 1973 challenging the legality and validity of the judgment and order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Surendranagar in Special (POCSO) Case No.2 of 2014 dated 1/1/2015, by which the Sessions Judge convicted the appellant herein - original accused for the offences punishable under section 377 of Indian Penal Code as well as under section 4 of the Protection of Children from Sexual Offences Act. However, the Sessions Judge, considering the evidence on record, did not award any separate punishment for the offence under section 377 of IPC but the learned Judge was of the opinion that if the accused is sentenced to undergo imprisonment for eleven years for the offence punishable under section 4 of POCTO Act, the ends of justice would be met. Accordingly, the learned Sessions Judge sentenced the appellant herein – original accused to undergo Rigorous Imprisonment for a period of eleven years with fine of Rs.30,000/-, and in default of deposit of fine, the learned Judge ordered to undergo further Rigorous Imprisonment for a period of one year, for the offence under section 4 of POCSO Act. The learned Judge further ordered that out of the amount of fine of Rs.30,000/-, Rs.15,000/- be paid to the mother of the minor victim. The learned Sessions Judge has also been pleased to grant benefit of set off under section 428 of the Code of Criminal Procedure.
2. The case of the prosecution, in nutshell is as under:- The complainant – Mr.S.K. Pujara, Chair Person of Child Welfare Committee, Surendranagar recorded statement of the victim, who at the relevant time was aged 12 years. In the said statement, the minor victim has stated that the accused has committed the offence of of unnatural act twice with him in Ashramshala (school). On the basis of the said statement, the complainant – Chairperson ordered that the victim personally appeared before the Child Welfare Committee, Surendranagar on Friday, 14/2/2019. He had given statement that Laljibhai who is friend of the Manubhai - teacher of Ashram Shala run and managed by Scheduled Tribes has committed offence of unnatural act with him and has abused him physically. The Minor victim has also stated in his statement that he has pain in stomach and while urning and hence if required, medical reports be got prepared and all the informations be kept secrete and special caution be taken to see such information do not publish in print media, as per the Juvenile Justice Act, 2000. The Chairperson also ordered that after following the mandatory procedure, the report of facts be placed before the Child Welfare Committee within a period of three days. The said order was sent to the Child Welfare Officer, Chotila Police Station, Chotila. On the basis of the aforesaid, Mr.Haripara, Police Inspector of Chotila Police Station registered FIR being CR No.I-22 of 2014 for the offence under section 377 of Indian Penal Code (hereinafter referred to as “IPC” and under section 4 of POCSO Act.
2.1. After registration of the FIR, investigating officer carried out investigation. He got done medical examination of the victim, obtained certificate of the doctor who had examined the victim, arrested the accused, prepared panchnama of the place of offence, recorded statement of the witnesses etc.
2.2. On completion of the investigation, as there was sufficient evidence against the accused, the investigating officer filed Chargesheet against the accused under section 173(2) of the Code of Criminal Procedure in the competent court and the case was registered as Special (POCSO) Case No.2 of 2014.
2.3. Thereafter, the Sessions Court framed Charge against the accused at Ex.8 and also recorded Plea of the accused under section 228(2) of the Cr.P.C. The accused pleaded not guilty and prayed for trial. Therefore, the trial court condu
