Karnataka High Court
Mahadevu @ Pappi vs State Of Karnataka By on 21 July, 2020
Author: Aravind Kumar
Bench: Aravind Kumar
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21st DAY OF JULY 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CRIMINAL APPEAL NO.1126 OF 2014
BETWEEN:
MAHADEVU @ PAPPI
S/O LATE NARASAIAH
AGED ABOUT 35 YEARS
JAYANTHI VILLAGE
PANDAVAPURA TALUK
MANDYA DISTRICT
...APPELLANT
(BY SRI. KEMPARAJU, ADV.)
AND:
STATE OF KARNATAKA BY
PANDAVAPURA POLICE STATION
BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560001
...RESPONDENT
(BY SRI. VIJAY KUMAR MAJAGE, SPL.PP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE ORDER DATED 02.12.2014 PASSED BY I
ADDL. DISTRICT & SESSIONS JUDGE, MANDYA IN SPL.C.NO.19/2014
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES P/U/S
354A, 376(2) OF IPC AND SECTION 4 OF POCSO ACT AND SECTION
3(2)(5) OF SC/ST (POA) ACT.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.06.2020 COMING ON
FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the accused challenging the judgment of conviction and order of sentence dated 2nd December 2014 passed in S.C.No.19/2014 by I Addl. District & Sessions Judge, Mandya whereunder appellant has been convicted for the offences punishable under Section 354A and 376(2) of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) and Section 3(2)(v) of Schedule Caste/Schedule Tribe (Prevention of Atrocities) Act, 1989 ('SC/ST Act' for short) and sentencing him to undergo rigorous imprisonment of 3 years and to pay a fine of Rs.5,000/- with default sentence of simple imprisonment for 3 months for the offence under Section 354A IPC, sentence of simple imprisonment for life and to pay a fine of Rs.10,000/- with default sentence of simple imprisonment for 6 3 months for the offence under Section 4 of POCSO Act and has been further sentenced to 7 years simple imprisonment and to pay a fine of Rs.10,000/- with default sentence of 6 months for the offence punishable under Section 3(2)(v) of SC/ST Act.
2. Brief facts of prosecution case is:
Accused was a resident of Jayanthi Nagar Village and his house is adjacent to the house of the complainant. That on 15.08.2013, accused knowing fully well that complainant belongs to Scheduled Caste community, sexually assaulted the minor girl aged about 11 years repeatedly by giving soft drinks. It was alleged accused was lifting the langa of victim girl and after removing her underwear he had put his penis on the place where urine is passed by the girl i.e., vagina and pressed about 8 to 10 times and committed rape against her will and knowing fully well that she is a minor girl, accused committed aggravated penetrative sexual assault on her and threatened her with dire 4 consequences that if she informs about the incident to anybody, he will kill her by piercing a knife and committed criminal intimidation and sexual assault on her. It was further alleged that mother of the child on coming to know that her daughter had not taken bath which usually she used to take on monthly menses, she had enquired with the minor victim girl who narrated to the complainant about sexual assault committed on her by the accused. Complainant further alleged that accused had called her to Srirangapatna demanding her to marry the victim girl to him. Thereafter, complainant approached Women Counseling Centre i.e., Mahila Santhwana Kendra and informed the incident and with their help, complainant got filed the complaint on 05.01.2014 against the accused before Pandavapura police station.
3. On the basis of aforesaid complaint lodged by the mother of victim girl, i.e., PW-3, police registered a case in Crime No.5 of 2014 against accused for the 5 offence punishable under Sections 376, 506 of IPC r/w Sections 4, 5(h)(l)(m)(q) and 6 of POCSO Act and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and took up investigation and filed the charge-sheet for the offence under Section 354A, 376(2) and 506 of IPC, Sections 4, 5(h)(l)(m)(q) and 6 of POCSO Act and Section 3(2)(v), 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Charges came to be framed by learned Sessions Judge and on accused pleading not guilty, prosecution examined 15 witnesses as PW-1 to PW-15 and got marked documents Ex.P1 to P21 in order to prove its case. While recording statement under section 313 of Cr.P.C accused gave an explanation in writing contending inter alia that there was loan transaction between the parents of victim girl and Smt. Saraswathamma (Aunt of accused) and on account of non-payment of loan amount, he (accused) had made a demand with complainant and her husband and to avoid repayment of loan a false 6 complaint has been lodged against him. In other words, there was total denial of the accused.
4. Trial Court after considering entire material placed on record, held that accused has committed rape on minor girl who belongs to Scheduled Caste community which is punishable under Sections 354A and 376(2) of IPC and Sections 4 and 3(2)(v) of POCSO Act. Hence, sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for 3 months for offence under Section 354A of IPC; further sentenced him to undergo simple imprisonment for life and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for 6 months for offence under Section 4 of POCSO Act; and also sentenced him to undergo simple imprisonment for 7 years and to pay fine of Rs.10,000/-, in default to undergo simple imprisonment for 6 months for the offence under Sections 3(2)(v) of SC/ST Act.
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5. Aggrieved by the judgment of conviction and order of sentence passed by trial court, appellant/accused has filed this appeal.
6. We have heard Sri. Kemparaju, learned counsel appearing for appellant and Sri. Vijay Kumar Majage, learned Addl. SPP appearing for the State.
7. Learned counsel for appellant submits that appellant has not committed any offence as alleged against him. He has further submitted that medical records speaks in favour of appellant wherein the victim girl (PW-2) was examined by doctor (PW-15) who has issued medical certificate as per Ex.P3 which clearly indicate that as on the date of examination of victim girl, doctor has opined that on general, physical and genital examination of PW-2, she was of the opinion that clinically there are no recent or old demonstrable injuries on the body/genitalia and that final opinion will be given after specific investigation and forensic report. 8 Learned counsel has further submitted that there was a Loan transaction in between accused and PW-3 and in order to avoid payment of money, complainant has got filed the present complaint on false and baseless grounds. He has further submitted that PW-4, PW-5 and PW-6 have turned hostile and further trial court merely on the basis of evidence of PW-2 and PW-3 and drawing presumption under Sec.29 of POCSO Act, has convicted the appellant for the alleged offences. It is his further submission that trial court, without considering the medical reports, has illegally convicted the appellant for offences alleged against him. Hence, he prays for allowing the appeal by setting aside the impugned judgment passed by the trial court.
8. Per contra, Sri. Vijay Kumar Majage, learned Addl. SPP submitted that allegations made by victim girl against appellant are heinous in nature and appellant had committed sexual assault on minor girl PW-2 aged about 11 years, knowing fully well that she 9 belongs to Scheduled Caste community. Hence trial court, after considering the evidence and material on record, has rightly convicted the appellant by drawing presumption under section 29 of POCSO Act and there are no grounds to interfere with the impugned judgment.
9. We have considered the submissions made by learned counsel appearing for the parties and have re- evaluated the entire evidence placed by the prosecution to drive home the guilt of the accused. Prosecution examined PW-1 Dr.T.R.Jayaram in order to establish the capability of accused for having sexual intercourse and he has given a report as per Ex.P1. Under Ex.P1, doctor PW-1 has opined that on "physical and genital examination of Sri.Mahadevu @ Pappi bearing the above mentioned identification marks, I am of the opinion that he is capable of doing sexual intercourse". Accused has not cross-examined PW-1. 10
10. PW-2, Kum. Prema (victim girl) has deposed before trial court that she is a resident of Jayanthi Nagar. CW-1 Rukmini is her mother; CW-2 is her father and they belong to Bhovi community. She has further deposed that she knows the accused and she does not know his caste. She has further deposed that she knows CW-4 Ramamma and she further deposed that CW-4 is an acquaintance of her mother but she does not know Ramamma personally. She is in acquantinace with CW-5 Jayamma and CW-6 Asha. CW-7 Saraswathamma is the junior aunt of accused and she knows her. CW-8 is the owner of the building where accused and her parents are all residing. She has deposed that portion of building is in possession of her parents and portion of it is in possession of the accused. Accused is residing in his portion with his wife and 3 daughters. She has further deposed that her parents are vending groundnuts in railway station as well as in moving trains. She has deposed that her parents used to go at 8.00 a.m. in the morning and 11 return at 9.30 p.m. in the night and she used to go to school at 9.45 a.m. and return in the evening at about 4.30 p.m. Her date of birth is 16.03.2002 and her mother does not know about her date of birth. She has further stated that CW-7 - Saraswathamma is aged about 65 years. That in the month of August last year, CW-7 requested PW-3 to send her daughter PW-2 to sleep along with her, as she is alone and is in her advanced age. As per the request of Smt.Saraswathamma, her mother permitted her to sleep in the house of Smt.Saraswathamma. In the same house, accused along with his wife and children used to sleep in a separate room. PW-2 has further deposed that she used to sleep outside along with Saraswathamma. It is further deposed by PW-2 that accused used to provide mango juice to her and though she used to refuse to drink the juice, he used to force her and when she drank the juice, she used to become unconscious. She has further deposed that at that time, accused used to come near her and remove her 12 underwear and after removing his pant he was inserting his penis into her vagina and have intercourse. She has further deposed that accused threatened her with dire consequences if she told about this incident to anyone and as such she kept quiet. She has further deposed that accused had committed sexual assault on her for about 4 to 5 months continuously knowing fully well that she was belonging to Scheduled Caste community. PW-2 has further stated that as a result, she became pregnant and she disclosed the incident to her mother. Thereafter her mother took her to Mahila Santhwana Kendra (Counseling Centre) and she had narrated entire incident that had occurred at the said Counseling Centre and she was advised to file a complaint. Thereafter, PW-2 along with her mother and father had been to Pandavapura Police Station and lodged a complaint and police had referred her to the doctors and she has stated before the doctor that accused had sexually assaulted her and doctor had examined her.
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11. PW-3, Rukmini is the mother of PW-2. She has deposed that her daughter is a minor girl aged about 11 years and they belong to Bhovi community and herself and her husband sell groundnuts in the railway station and moving trains and they used to go at about 9.00 a.m. in the morning and return at 9.00 p.m. She has further deposed that accused is residing by the side of their house along with his wife and 3 daughters and was selling vegetables. She has also deposed that her daughter-PW-2 was studying in a Government Primary School at Jayanthi Nagar and her date of birth is 16.03.2002. She has further deposed that CW-7 -Smt.Saraswathamma had requested her to send her daughter to sleep in her house as she was alone in her house and said Saraswathamma was staying in a shed outside the house of accused which was attached to the house of accused. She has further deposed that Saraswathamma was alcoholic and when she refused to send her daughter, Saraswathamma had 14 told that they will not do anything and forcibly took her daughter (victim girl) to sleep with her and when she observed that body of her daughter had grown up she had enquired with her daughter as to why she had not taken bath which she used to take during monthly period and at that time she was told by her daughter that accused used to give fruit juice to her and commit rape and used to sexually assault. She has also deposed that accused had threatened her daughter not to inform about the incident to anybody or else he would kill her parents by assaulting them with a knife. She has further deposed that accused had come to the house of CW-6 Asha and she had also been to the house of CW-6 as she was informed by CW-6 that one Putta called her over phone to come to Srirangapatna and in the discussion Asha -CW-6 had asked her to give in marriage her daughter to the accused and she had flatly refused said proposal as they belonged to different caste and marriage proposal was not possible, to which accused told her that victim is already 15 pregnant and nobody will marry her. She had deposed that she informed these facts to Smt.Ramamma and Smt.Jayamma, who advised her to go to Mahila Santhwana Kendra and on Saturday the 4th January 2014 they had been to Mahila Santhwana Kendra (Counseling Centre) and from there they were taken to Pandavapura Rural Police Station, where she lodged a complaint before the police as per Ex.P4 and thereafter police have taken her daughter to Pandavapura Government Hospital where no lady medical officer was available and as such they were sent to Mandya District Government Hospital and on the next day doctor had examined her daughter-P.W.2.
12. Though in the course of cross-examination complainant-P.W.3 has denied the allegations made against her, she has admitted that she did not inform about the pregnancy of her daughter to her husband and she has denied that she has given a false 16 complaint on the say of people at Mahila Counseling Kendra.
13. PW-4 Asha who is the neighbour of accused and complainant has turned hostile. She has deposed that victim and her mother are acquainted with her and she also knows the accused. She pleads ignorance about accused having committed sexual assault on victim girl. She further deposes that she has not given any statement before police as per Ex.P5.
14. PW-5 Saraswathamma who turned hostile is the sister of accused's mother and she has deposed that Rukmini and her daughter Prema are known to her and she has also deposed that accused is her nephew and she is residing in front of the house of accused by putting up a tarpal. She has further deposed that PW-2 Prema is aged about 14 years. Accused is married and has got 3 children and she pleads ignorance about accused committing sexual assault on Prema. She 17 further deposes that she has not given any statement before police as per Ex.P6.
15. PW-6 Smt. Vasantha who is the owner of the building where accused and complainant are residing, has deposed that she knows the complainant, victim girl, accused and also Smt.Saraswathamma. She has clearly deposed that accused is the nephew of P.W.5- Smt.Saraswathamma. She has further deposed that accused, his wife and children are residing separately. She pleads ignorance about accused having committed sexual assault on victim minor girl. She further states that she has not given any statement before police as per Ex.P7. She has turned hostile.
16. PW-7 Raghu who is the Director working in Ujwala Jnanavikasa Education Trust since from November 2013 to February 2014 has deposed that on 03.01.2014, complainant and victim girl had visited their Trust Office and as they were not present, they came again on 04.01.2014. He has deposed that Prema 18
-P.W.2 might be aged about 11 to 12 years and complainant (Rukmini)/PW-3 informed them that accused had committed sexual assault on her daughter Prema -PW-2 by giving mango juice and as a result of sexual intercourse her daughter had become pregnant. He further deposed that P.W.3 had informed him that accused had demanded her to give her daughter in marriage to him and had threatened that if they fail to do so they would be killed. He has deposed Smt. Bhavyashree had visited the scene of crime and informed him about sexual assault made by the accused and Smt. Shakuntala-P.W.8 having counseled PW-2 and PW-3 had assisted them in lodging the complaint. In the cross-examination, he has admitted that he had worked for 4 months only in the said Kendra and denied having given any statement before the police. He has further stated that he is deposing before court with regard to the incident for the first time.
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17. PW-8 Shakuntala is the Director-Planning who was working in Ujwala Jnanavikasa Education Trust since November 2013 to February 2014. She has deposed that she had interacted and counseled PW-2 and PW-3 on 05.01.2014. She has reiterated the same facts as stated by Raghu PW-7.
18. PW-9 Smt. Keerthana is the Tahsildar who has deposed that during 2011, she was working as Tahsildar at Pandavapura and at the request of police she has issued Ex.P8 Caste Certificate of victim girl and accused on verification of records by certifying they belong to Bhovi (Scheduled Caste Community) and Nayana Kshatriya Caste, respectively.
19. PW-10 Smt. Mahalakshmi is the teacher working in Government School where the victim girl was studying. On request made by police through requisition letter- Ex.P9, she has issued Certified copy of date of birth certificate -Ex.P.10 based on school records of victim girl which shows her date of birth as 20 16.03.2002 and Ex.P11 is certified extract of school admission register.
20. PW-11 Ramesha is the Panchayat Development Officer, Kennalu Gram Panchayat. He has deposed that on request made by Pandavapura police as per Ex.P12, he had issued copy of the property demand register extract as per Ex.P13, the place where PW-2 was alleged to have been sexually assaulted. During the course of cross-examination he has stated that when he visited the spot, he found one Narasayya was residing in the house and he also admits that he does not know who else were residing in said house.
21. PW-12 Azaruddin is the PSI of Pandavapura Police Station. He has deposed that since 05.09.2013 he is working there. He has further deposed that on 05.01.2014 at about 2 p.m., Rukmini, W/o Umesh and her daughter Prema and official members of Ujwala Santhwana Kendra came to the police station and Rukmini PW-3 gave written complaint as per Ex.P4 and 21 based on said complaint, a case came to be registered in Crime No.5/2014 and FIR was registered as per Ex.P14 and further investigation was handed over to Smt. Geetha Prasanna, DSP ie., PW-14. On 07.01.2014, on instructions of DSP, accused was arrested and produced before DSP and report was submitted as per Ex.P15.
22. PW-13 K. Cheluvaraju who turned hostile is the neighbour of accused and he has deposed that he knows the complainant-PW-2 Prema and the accused. He has deposed complainant and accused are residing in the same building, but in different portions. That in between his house and the house of accused, there are four houses and he has further deposed that police came to the spot and took his signature on mahazar, Ex.P2, but he does know the contents of Ex.P2.
23. PW-14 Smt.Geetha Prasanna is the DSP of Srirangapatana has deposed that she took up the investigation on 05.01.2014, visited the spot and 22 prepared the Mahazar-Ex.P2 between 2.45 to 3.45 p.m. and took the signatures of panchas on Ex.P2 and thereafter victim was sent to medical examination along with the constable. She has further deposed that she enquired with the victim girl and recorded her statement and sent her for medical examination and she has admitted that she recorded further statement of the victim girl and also the statements of Smt.Asha PW- 4, Smt.Vasantha PW-6 and Smt.Saraswathamma PW-7 as per Exs.P5 to P7. She had deposed that she had requested the Tahsildar for issuing the caste certificate of the victim girl as per Ex.P8 and also collected the school records as per Ex.P9 and collected the residential certificate as per Ex.P13. She has deposed that on 07.01.2014, PSI produced the accused before her and he was arrested and sent for medical examination along with a constable and the medical examination report of the accused is marked as Ex.P1. She has deposed that she collected the materials of victim girl and the accused and noted the same in 23 P.F.No.8 of 2014 and P.F.No.9 of 2014 and it came to be marked as Ex.P16 and P17 respectively. She has further deposed that on production of the accused by PSI, she sent the accused for medical examination and received medical reports of the accused and victim girl and also sent the collected materials for FSL examination and has submitted the charge-sheet. Except denying the procedure adopted by PW-14, nothing has been elicited from this witness.
24. PW-15 Dr. Syed Ayesha is the doctor who examined the victim girl. She has deposed that she is working in Mandya District Hospital from November 2013. She further deposed that on 05.01.2014, one minor girl came to the hospital by name Prema accompanied by her mother Smt. Rukmini. She has deposed that she had taken the consent of the mother for medical examination of victim girl and thereafter she examined the victim girl and found that there were no external injuries found on the body of the victim girl. 24 She has collected vaginal smear and pubic hair of victim girl and gave it to police. She has issued the medical report as per Ex.P3 subject to final opinion. She has deposed that she has issued final opinion as per Ex.P20 and she has further deposed that she found that victim girl had no traces of having had sexual intercourse. In the final opinion under Ex.P20, doctor PW-15 has opined as under:
"On general, physical and genital examination of Kum/Smt. Prema bearing the above mentioned identification marks, I am of opinion clearly there are no recent or old demonstrable injuries on the body/genitalia, final opinion will be given after specific investigations and forensic report."
This was the nature of evidence of prosecution witnesses laid before the trial court.
25. In cases concerning the offences under POCSO Act, sheet anchor of the arguments made on behalf of State is presumption that operates against accused under Section 29 of the POCSO Act. It is also 25 contended that in cases pertaining to POCSO Act, as contended in the present case by learned Addl. SPP on behalf of the respondent-State, that court has to presume that accused has committed the alleged offence for which he is charged under the said Act, unless contrary is proved. On this basis, it was submitted on behalf of the respondent-State that court has to presume that accused has committed the offence for which he is charged under the said Act, unless the contrary is proved. On this analysis, it is contended on behalf of the State that it is for appellant to have proved to the contrary and burden was entirely upon him to prove his innocence, which he had failed to discharge and therefore conviction and sentence imposed by the trial court should not be disturbed.
26. In light of aforesaid contention raised by the State, it is necessary to examine the effect of presumption arising under Section 29 of POCSO Act and the manner in which accused can rebut such 26 presumption. Section 29 of the POCSO Act reads as follows:
"Section 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 9 of the 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."
27. Perusal of the above provision does indicate that it is for the accused to prove the contrary namely, he has not committed or abetted the commission of an offence under section 3, 5, 7 and 9 of the POCSO Act and in case he fails to do so, presumption would operate against him leading to his conviction under the provisions of the Act. It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that presumption under Section 29 of the Act is absolute. It would come into operation only when prosecution is first able to establish the fact and that would form the 27 foundation for presumption under Section 29 of the Act to operate. Otherwise, all 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 evidence of prosecution witness would have to be accepted as gospel truth and 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 Act cannot be accepted as it would clearly violate the constitutional mandate and no person can be deprived of liberty, except in accordance with the procedure established by law.
28. The manner in which a presumption would operate against an accused has been analyzed and deliberated upon by the courts, because such a presumption is also provided for in various statutes including the Prevention of Corruption Act 1988. In the case of BABU VS. STATE OF KERALA ([2010] 9 SCC 189), the Hon'ble Apex Court while examining in what 28 manner presumption under a statute would operate against the accused, 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 basic 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 go 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 the Negotiable Instruments Act 1881; the Prevention of Corruption Act, 1988; and the 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 be raised only 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 of proof is on the accused. The statutory provision even for a presumption of guilt of 29 the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Article 14 and 21 of the Constitution (Vide: Hiten P. Dalal vs. Bratindranath Banerjee, (2001) 6 SCC 16; Narendra Singh vs. State of M.P., (2004) 10 SC 699; Rajesh Ranjan Yadav vs. CBI, (2007) 1 SCC 70; Noor Aga vs. State of Punjab & Anr., (2008) 16 SCC 417; and Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008) 4 SCC 54."
29. In the case of SACHIN BALIRAM KAKDE VS. STATE OF MAHARASHTRA (2016 ALL MR [Cri] 4049), the Bombay High Court in the context of presumption under Section 29 of the POCSO Act after quoting the said provision has held as follows:
"17. 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.
18. The presumption, however, cannot be said to be irrefutable. 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.
19. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law, they fly in twilight but vanish in the light of facts."30
30. In case of AMOL DUDHRAN BARSAGADE VS. STATE OF MAHARASHTRA (CRIMINAL APPEAL NO.600/2017 DD.23.04.2018 [NAGPUR BENCH]), it has been held as under:
"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 victim 12.10.2001 is duly proved and is in deed 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 a statutory presumption under Section 29 of the POCSO Act is absolute, must be rejected, if the suggestion is that even if the foundation facts are not established, the prosecution can invoke statutory presumption. Such an interpretation of Section 29 of the POCSO Act would render the said provision vulnerable to the wise 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 of the accused is not to rebut the presumption beyond a 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.
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31. In the matter of SUBRATA BISWAS & ANR. VS. STATE (2019 SCC ONLINE CAL 1815) it has been held as under:
"21. I am not unconscious of the statutory presumption engrafted in Section 29 of the POCSO Act which reads as follow:-
"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".
22. The statutory presumption applies when a person is prosecuted for committing offence under Sections 5 and 9 of the Act and a reverse burden is imposed on the accused to prove the contrary. The word "is prosecuted" in the aforesaid provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence. If that were so then the prosecution would be absolved of the responsibility of leading any evidence whatsoever and the Court would be required to call upon the accused to disprove a case without the prosecution laying the firm contours there of by leading reliable and admissible evidence. Such an interpretation not only leads to absurdity but renders the aforesaid provision 32 constitutionally suspect. A proper interpretation of the said provision is that in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. Upon laying the foundation of its case by leading cogent and reliable evidence (which does not fall foul of patent absurdities or inherent probabilities)the onus shifts upon the accused to prove the contrary. Judging the evidence in the present case from that perspective, I am constrained to hold that the version of the victim (PW-1) and her mother (PW-2) with regard to twin incidents of 24th March, 2016 and 18th April, 2016 if taken as whole, do not inspire confidence and runs contrary to normal human conduct in the backdrop of the broad probabilities of the present case."
23. Hence, I am of the opinion that the evidence led by the prosecution to establish the primary facts suffer from inherent contradictions and patent improbabilities particularly the inexplicable conduct of the victim herself. One part of the prosecution case improbabilises the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Hence, I am of the opinion that the factual matrix of the case does not call for invocation of the aforesaid statutory presumption so as to convict the appellant on the charges levelled against him."
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32. In the case of SITARAM DAS VS. STATE OF WEST BENGAL (2020 SCC ONLINE CAL 522) it has been held as under:
"29. Let us now address the applicability of Section 29 of the POCSO Act dealing with availability of presumption to be attracted to against the accused/appellant, in the given set of facts.
30. Most of the witnesses during trial either being declared hostile to prosecution, or not having rendered desired support to the prosecution version, shown in FIR, for the reasons ascribed in the judgment, learned Trial Judge thought it prudent to make the presumption applicable against the accused person, available under Section 29 of the POCSO Act. The principal thrust of this appeal was the imperfect application of Section 29 of the POCSO Act dealing with presumption in a case, where victim herself had given a go-by to the persecution story developing a separate story in her own version, contrary to the case set up in F.I.R, and subsequently in her 164 statement. The evidence adduced by the prosecution irresistibly indicates one and only important feature that the foundational evidence with respect to the offence charged has not been led in the instant case. It would be most improper, if the presumption available in Section 29 of the POCSO Act is straightway made applicable in a case even in absence of foundational evidence being led by 34 prosecution. As has already discussed that besides medical evidence, there was no other evidence in making out a case, either of rape or aggravated sexual penetrative assault, and that medical evidence cannot be considered to be conclusive in sense in the given set of facts, so in the absence of proof of foundational evidence corresponding to the charges framed in this case against the accused person, there hardly left any circumstances for making any application of presumption available under Section 29 of the POCSO Act. The words appearing in Section 29 of the POCSO Act "Where a person is prosecuted" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross- examination by defence. When a different story is developed during trial by the victim prosecutrix, contrary to the story of prosecution, and that developed story received ratification from the near relatives of the victim prosecutrix, in the given facts situation, it stands to reasons that despite having been provided with sufficient opportunity to prove the case, prosecution failed to probalise the incident complained of in the F.I.R."
33. Keeping the aforesaid position of law in mind, evidence of prosecution witnesses in the present case, 35 will have to be examined to find out whether prosecution has established the presumption arising under Section 29 of POCSO Act.
34. PW-3 is the complainant and mother of PW-2, victim girl. She is not an eye-witness to any of the acts attributed to the appellant in the present case. In fact, the nature of her evidence is such that it is clearly a hearsay evidence, and also the evidence of PW-7 and PW-8 are hearsay evidence. PW-3 has claimed that victim had told her about alleged act perpetrated by the appellant on 15.08.2013 and continued for about 4- 5 months. The evidence of PW-3 is only hearsay evidence.
35. Prosecution has examined the victim girl as PW-2. Therefore, it is only the evidence of PW-2 which could be said to be direct evidence in support of the prosecution. It is an undisputed fact that victim girl- P.W.2 was of tender age when the alleged incident took place and also when her evidence was recorded in the 36 court. Being a child witness of tender age and sole direct witness in support of the prosecution case, evidence of PW-2 has to be evaluated with great care and caution. In this context, judgment of Hon'ble Apex Court in case of RADHESHYAM VS. STATE OF RAJASTHAN can be noted with benefit whereunder it has been held as follows:
"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 pray 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 apeal 406-17.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 37 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."
36. Keeping the aforesaid authoritative principles laid down by Apex Court in mind pertaining to appreciation of evidence of witnesses, particularly a child witness, it will have to be first examined as to which category the testimony of PW-2 (victim) would 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 is found neither wholly reliable nor wholly unreliable, it would definitely require corroboration. A close scrutiny of the evidence of PW-2 in the present case shows that although in examination-in-chief this witness has deposed that on enquiry by her mother i.e., the complainant-P.W.3 asking her as to why she had not taken her bath, which she normally used to take during 38 monthly periods/menses, she is said to have told her mother that appellant had sexually assaulted her many times. She has also deposed that appellant used to give her mango fruit juice and after consuming it she used to become unconscious and at that time appellant used to sexually assault her. She has also deposed that as a result of sexual assault she had became pregnant. This witness has not stated in detail about when the appellant had indulged in alleged sexual assault or activities. There are no details about any day or date when such activity was undertaken. It is ununderstandable that she being a child of tender age, such details may not be expected, but some amount of specifics would be required particularly on account of suspicious circumstances surrounding her statement which we will be discussing hereinafter and also Medical evidence clearly indicating she having never had sexual intercourse.
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37. PW-2 has deposed that she became pregnant on account of rape committed by accused. However, medical records indicate PW-2 was not pregnant at the time of her medical evaluation. Medical evidence in the present case is also of no assistance to the prosecution. On the other hand it is against her. FIR came to be registered on 05.01.2014 while the alleged act of sexual assault is said to have been committed by the appellant on 15.08.2013 during the night hours and thereafter it is said to have continued for about 4-5 months. The doctor PW-15 has stated in her evidence that she had examined the victim PW-2 and found there was no proof of PW-2 having indulged in sexual intercourse. PW-15 who had examined PW-2 has issued "Examination of the alleged victim of Rape Certificate" as per Ex.P3. At the time of medical examination of PW-2, she was accompanied by her mother PW-3 and by consent of PW-3, minor girl-P.W.2 was subjected to physical and 40 genital examination and it has been recorded thereunder as follows:
"12) Signature of the individual consenting or the left thumb impression :
13) In the case of minors,
consent of the guardian and
his signature or left thumb
impression :
26) Genitalia-pubic hair-length
Matted or not : Normal
Vulva : Normal Vagina: Normal
Hymen : Intact Fourchette:Normal
Perineum: Normal Cervix: Normal
and doctor -P.W.15 has opined as under:
29) Opinion:
"On general, physical and genital examination of Kum/Smt. Prema bearing the abovementioned identification marks, I am of the opinion.
Clinically there are no recent or old demonstrable injuries on the body/genitalia, final opinion will be given after specific investigations and forensic reports".
Place: MIMS Mandya Date: 06/01/2014 Rd. on 07/01/2014 Sd/-
OBG District Hospital Mandya"
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38. The final opinion was not tendered and it was reserved by the said witness pending receipt of FSL report. FSL report which came to be submitted by P.W.15 was marked as Ex.P19 through PW-14 i.e., certificate of examination of vaginal smear, pubic hair, etc., of PW-2 came to be examined by Smt. Radha S., Scientific Officer, Regional Forensic Science Laboratory, Mysore and she has opined as under:
(1) Presence of seminal stain was not detected in item Nos.3 and 4.
(2) Presence of spermatozoa was not detected in Article Nos.1 and 2.
Based on FSL report Ex.P19, PW-15 has rendered her final opinion as per Ex.P20, whereunder she has clearly stated to the following effect:
"There is no evidence of intercourse because of clinically the hymen is intact and laboratory reports suggest presence of no spermatozoa".
This report clearly establishes that there was no sexual assault was committed by appellant on 15.08.2013 42 and/or continued for 4-5 months as claimed by P.W.2 and P.W.3.
39. As the case of prosecution itself was that the alleged act was committed by the appellant on 15.08.2013 and continued for 4-5 months. FIR came to be registered on 05.01.2014 and victim girl-P.W.2 was medically examined by the doctor on 05.01.2014, and the medical evidence in the present case establishes that victim girl had never had any sexual intercourse at all. This lead us to draw the irresistible conclusion that offence under Section 376 IPC and Section 4 of POCSO Act is not proved by the prosecution or in other words, the burden cast on the accused stands rebutted.
40. Therefore, only evidence available in the present case is the self serving testimony of victim girl PW-2. Applying the principles governing the manner in which evidence of a solitary child witness is to be analyzed and accepted in a criminal trial as discussed by Hon'ble Apex Court in Radheshyam's case referred to 43 supra to the case on hand, it becomes evident that corroboration was required from other evidence and material on record. It is clear that PW-3 i.e., mother of PW-2 (victim) was deposing on the information allegedly given by the victim, rendering her evidence as a hearsay evidence. There was no other prosecution witness who would support the statement of child witness PW-2 (victim). The medical evidence on record did not show any corroboration of sexual assault on the victim. This creates a serious doubt about the veracity of the statement made by PW-2 and it appears that she has made a statement on being told to do so or in other words she was tutored.
41. A reading of the evidence of these two witnesses i.e., PW-2 and PW-3 clearly establishes that it would not be safe to rely upon the sole testimony of child witness i.e., PW-2 to convict the appellant in the present case. There is no corroboration to the evidence of the said child witness PW-2 and evidence of other 44 witnesses would not support the case of prosecution and they have turned hostile. As there is no medical evidence on record to support the theory of prosecution that victim was subjected to sexual assault by the appellant, it becomes difficult to uphold the conviction ordered by the trial court.
42. Proper analysis of the evidence of prosecution witnesses and medical evidence brought on record by prosecution shows that foundational facts necessary in the present case to raise a presumption under Section 29 of POCSO Act, have not been laid or established beyond reasonable doubt by the prosecution. The statutory presumption under Section 29 of the POCSO Act must be understood and tested on the anvil of the golden thread which runs through web of the criminal jurisprudence system in this country that an accused is presumed tobe innocent till the guilt is conclusively established beyond reasonable doubt. The defence has been able to demonstrate that prosecution story cannot 45 be believed and therefore the presumption would not operate in favour of victim girl and even otherwise it had stood rebutted by the medical evidence and oral evidence of PW-2 and documentary evidence Ex.P3, P19 and P20.
43. It has come in the evidence of other prosecution witnesses that there was a loan transaction between appellant and complainant. Statement of the accused recorded under Section 313 of Cr.P.C, he has denied the allegations made against him and he has given a reply on 20.11.2014 stating thereunder that there was loan transaction between P.W.5 who is none other than aunt of accused and parents of victim and hence a quarrel took place between P.W.3 and accused namely when accused demanded repayment of loan complainant had filed a false case against the accused.
44. On careful scrutiny and analysis of material evidence on record it clearly demonstrates that present 46 case is a case of false implication or complete misunderstanding of the situation by the learned Sessions Judge who seems to have jumped to a conclusion by presuming that allegations made by P.W.2 and P.W.3 against appellant are presumed to be true. In the backdrop of overwhelming medical evidence available on record, it would be unsafe to hold that prosecution had proved its case against appellant under the provisions of POCSO Act or under Sections 354A and 376 of IPC.
45. As far as provisions of Section 3(2)(v) of the SC/ST Act invoked against accused is concerned, it is trite law that same can be invoked subject to condition prescribed thereunder, being fulfilled. Said provision reads as under:
"3(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of Scheduled 47 Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."
46. Bare reading of aforesaid provision would reveal that whoever not being a member of a SC/ST commits an offence under IPC, which is punishable with imprisonment of ten years or more even after knowing such person belongs to SC/ST or property belongs to such person, it is not sufficient that injured person should be a member of either category. Further, it requires to be proved that offence has been committed on the ground of victim being a member of scheduled caste or scheduled tribe. In the absence of this material, merely because PW-2 happen to be a member scheduled caste, automatically the offence under Section 3(2)(v) of the SC/ST Act is not made out.
47. There is no material on record indicating that alleged rape was committed on the ground that PW-2 was a member of Scheduled Caste. The fact that PW-2 is a member of Scheduled Caste is not in dispute. 48 However, in the absence of material that alleged offence has been committed on the ground of victim (PW-2) was a member of Scheduled Caste, conviction under the aforesaid provision of the Act cannot be sustained.
48. In view of the aforesaid discussion, conviction of appellant under Section 3(2)(v) of the SC/ST Act and sentence imposed thereon, cannot be sustained and same is liable to be set aside.
49. The prosecution has also failed to explain the delay in lodging the complaint. Alleged incident took place on 15th August 2013. Complaint-Ex.P.4 came to be lodged by P.W.3 on 05.01.2014. Same has been sought to be explained by PW-2 and PW-3 contending accused had threatened PW-2 and as such complaint was not lodged. When the theory of rape committed by accused on PW-2 and consequently PW-2 having become pregnant is not proved, and the fact that complainant PW-3 having not assigned any cogent reason for delay of about five (5) months in lodging the 49 complaint or in other words, same having not been explained which would inspire confidence in court as well as inconsistency in the evidence of PW-7 and PW-8 (who were officials of Mahila Santhwana Kendra) as to the actual date of visit of PW-2 and PW-3 to the said Kendra, being vague and in doubt, explanation for delay in lodging the complaint cannot be accepted. These aspects have been overlooked by the trial court and merely on the basis of presumption learned Sessions Judge has convicted the appellant for the offences punishable under Section 354A and 376(2) of IPC and Section 4 of POCSO Act and Section 3(2)(v) of the SC/ST Act and thereby committed a serious error. Hence, we are of the considered view impugned judgment is contrary to material evidence available on record and same cannot be sustained and it is liable to be set aside.
For reasons aforesaid, we proceed to pass following:
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JUDGMENT (1) Appeal is allowed.
(2) Judgment of conviction and order of sentence passed by I Addl. District and Sessions Judge, Mandya dated 02.12.2014, in S.C.No.19/2014, is set aside and appellant/accused is acquitted of all the charges leveled against him.
(3) Bail bonds stands discharged and he shall be set at liberty forthwith, if not required in any other case.
SD/-
JUDGE SD/-
JUDGE RD