Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(Bom) 7812

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

2024:BHC-NAG:11066

CRIMINAL APPEAL (APEAL) NO. 47 OF 2022

Kailas S/o. Rama Dawar (Jail)
Aged about 22 yrs, Occ: Laborer,
R/o. Wasali, Tq. Sangrampur,
Dist. Buldhana
(Accused in Jail)
.... APPELLANT
// V E R S U S //
1. State of Maharashtra,
through P.S.O., P.S. Hiwarkhed,
Tal. Telhara, District Akola
2. XYZ (Minor),
Aged about 12 Yrs., Through her
Natural Guardian
R/o. Wari, Hanuman, Taluka
Telhara, Dist. Akola ... RESPONDENTS

Mr. A. S. Londhe, Advocate for the appellant
Ms Ritu Sharma, APP for the respondent/State
Ms Sonal Tripathi, Advocate for respondent No.2

CORAM : G. A. SANAP, J.

DATE : 05/09/2024

Amendment carried out as per courts order dated 24.01.022

Advocates:
For the Appellants/Petitioners: A. S. Londhe
For the Respondents: Ritu Sharma, Sonal Tripathi

The presumption of guilt is rebuttable and only triggers after the prosecution satisfies the burden of proving foundational facts beyond reasonable doubt. Where evidence is inconsistent and unreliable, the prosecution fails to establish these foundational facts, necessitating an acquittal despite the existence of a statutory presumption.

Headnote:(A) Indian Penal Code - Sections 328 and 376(2)(i) - Protection of Children from Sexual Offences Act - Sections 3, 4 and 29 - Criminal Appeal - Conviction challenged - Admissibility and reliability of prosecution evidence - Principle of proof beyond reasonable doubt - Whether presumption under Section 29 of said Act can be invoked without establishing foundational facts. (Paras 6, 17, 20, 21)

(B) Presumption of guilt - Section 29 of the special enactment is a rebuttable presumption - It gets triggered only when the foundational facts are established by the prosecution beyond reasonable doubt - If the base of the prosecution case is shaken by inconsistencies and gaps, the presumption does not automatically apply. (Para 21)

Facts of the case:
The prosecution alleged that the accused administered harmful substances to a minor girl and committed sexual assault. The trial court convicted the accused based on oral testimony and medical evidence. The appellant challenged the conviction, citing significant inconsistencies in the version of events, delayed reporting, and the inconclusive nature of the medical examination conducted years after the incident.

Findings of Court:
The court observed that there was a failure to explain the delay in reporting or the decision to refrain from immediate medical examination. Significant contradictions appeared in the testimonies regarding the sequence of events. Medical evidence was deemed insufficient as it was collected long after the incident without providing conclusive proof of the alleged act.

Issues: The primary issues were whether the evidence provided was sufficient to prove the guilt beyond reasonable doubt and whether the statutory presumption of guilt could be applied without a solid evidentiary foundation.

Ratio Decidendi: The legal presumption is not absolute but rebuttable. The prosecution failed to establish the foundational facts necessary to support the charge, and the evidentiary inconsistencies created significant doubt regarding the involvement of the accused. Therefore, the accused is entitled to the benefit of doubt.

Result: Appeal allowed; conviction quashed and set aside; appellant acquitted.

O R A L J U D G M E N T :

1 In this appeal, the challenge is to the judgment and order, dated 27.08.2021, passed by the learned Special Judge and Additional Sessions Judge, Akot, Dist. Akola, whereby the learned Judge, convicted the accused for the offence punishable under Sections 328 and 376(2)(i) of the Indian Penal Code (for short ‘the IPC’) and Section 3 read with Section 4 of the Protection of Children From Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/- and in default of payment of fine to further suffer imprisonment for six months for the offence punishable under Section 328 of the IPC and further sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.15,000/- and in default of payment of fine to further suffer imprisonment for one year for the offence punishable under Section 3 read with Section 4 of the POCSO Act. No separate punishment has been awarded for the offence punishable under Section 376(2)(i) of the IPC.

2 Background facts:

The informant is the mother of the victim girl, who at the time of the incident was 7 years old. The case of the prosecution, which can be gathered from the First Information Report and other record, is that the informant has four sons and seven daughters. The victim is her youngest daughter. Her eldest daughter is married and residing near her house. On the date of the incident i.e. on 14.09.2018, the victim went to the house of her sister by name Sundari. The children of Sundari were at the house. They took meals together. The victim at about 8:00 p.m. went to sleep at the house of Sundari. The son of the informant went to the house of Sundari at about 10:00 p.m. He found that the victim was lying in an unconscious condition. He came back to the house and informed her. The informant went to the house of her eldest daughter. She found that the victim was lying in an unconscious condition. She regained consciousness on 15.09.2018 at about 7:00 a.m. The victim at that time told her that the son-in-law of their neighbour had come to the house of her eldest daughter. The name of her neighbour is Pocha Chavhan. The name of his son-in-law, who is accused in this case, is Kailas Dawar R/o. Wasali. Kailash Dawar administered pills to the victim. The victim became unconscious. The accused Kailash also offered pills to Sumitra, the daughter of Sundari, but she threw away the pills. The victim tried to run away from the spot, but the accused caught hold her. The victim told the informant that the accused removed her clothes and committed sexual intercourse with her. The informant took the victim to the police station and lodged the report. The crime bearing No. 206 of 2018 was registered at Hiwarkhed Police station against the accused.

3 The victim was referred for medical examination by the police. The mother of the victim did not consent for the medical examination of the victim. The investigating officer went to the spot and drew the spot panchanama. He arrested the accused. The accused was sent for medical examination. The investigating officer recorded the statements of the witnesses. The statements of the victim and her mother were recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (For short ‘the Cr.P.C.’). The samples collected during the course of the investigation were sent for analysis. On completion of the investigation, the investigating officer filed the chargesheet against the accused.

4 Learned Judge framed the charge against the accused. The accused pleaded not guilty. His defence is of false implication on account of the dispute between his father-in-law and the family of the informant. The prosecution, in order to bring home guilt against the accused, examined ten witnesses. Learned Judge, on consideration of the evidence, found the evidence sufficient to prove the charge against the accused and accordingly conv

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