Bombay High Court
State Of Mah. Thr. Pso Ps Arjuni Mor ... vs Gopal S/O Nikanth Janbandhu on 21 December, 2020
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 472 OF 2020
State of Maharashtra,
Through Police Station Officer,
Police Station Arjuni-Mor,
District Gondia. . . . APPELLANT
...V E R S U S..
Gopal s/o Nilkanth Janbandu
Aged about 48 years, Occ. Teacher,
R/o Arjuni-Mor, Distt. Gondia. . . . RESPONDENT
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Ms. K.S. Joshi and Shri T.A.Mirza, Additional Public Prosecutor for the
appellant.
Shri V. S. Mishra, Advocate for the respondent.
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CORAM : Z. A. HAQ AND
AMIT B. BORKAR, JJ.
RESERVED ON : 16.12.2020.
PRONOUNCED ON : 21.12.2020.
ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :
1. By this appeal, the appellant is challenging the judgment and order dated 05.01.2019 passed by learned Additional Sessions Judge-1, Gondia (Designated Court) under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act" for the sake of brevity) in Special (POSCO) Case No.17 of 2018, thereby acquitting the respondent of the charges of commission of ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 2 cr-appeal-472.20.odt offences punishable under Sections 376 (2-f), (i) and (j) and Sections 354-A and 354-B of the Indian Penal Code (IPC) alongwith Sections 4, 5
(c), (m) and 9 (f) punishable under Section 10 of the POCSO Act.
2. Facts, in brief, leading to the prosecution case can be summarized thus:
On 02.12.2017, Victim No.2 approached Informant in her bedroom and told about the incident happened with her in school.
Victim No.2, who was in frightened condition, narrated to the informant that since one month the accused, in absence of the Headmaster, during school interval intermittently called her and two other victim girls in the classroom, the accused closed doors and windows of the classroom, the accused fell them down under the table and chairs. One day the accused asked her to remove her underwear and thereafter inserted his finger into her private part. Victim No.2 shouted loudly and, therefore, the accused set her free and went out of the classroom. When the Victim No.2 was urinating, there was pain in her private part. She did not tell said incident to her parent, as she was apprehensive that they would be angry on her. she narrated said incident to informant.
3. The informant thereafter visited the parents of other two victim girls and after meeting them, it revealed that similar incident had happened with other two victim girls. Parents of all the three victim ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 3 cr-appeal-472.20.odt girls discussed about the incident and thereafter went to the police station and lodged report against the accused on 05.12.2017.
4. On the basis of the report, FIR came to be registered against the accused for offences punishable under Sections 376 (2-f), (i) and (j), 354-A and 354-B of the IPC alongwith Sections 4, 5 (c) (m) and 9 (f) punishable under Section 10 of the POCSO Act. The investigation was carried out and after its completion, charge-sheet came to be filed against the accused for offences stated above.
5. The Special Judge framed charges against the accused for offences punishable under Sections 376 (2-f),(i) and (j) and Sections 354-A and 354-B of the IPC alongwith Sections 4, 5 (c) (m) and 9(f) punishable under Section 10 of the POCSO Act. The charges were explained to the accused in vernacular, which he pleaded not guilty and claimed to be tried
6. In support of the case of prosecution, the prosecution examined twelve witnesses, out of which three are minor victim girls, having age 9 years on the date of incident. After recording the evidence adduced by the prosecution, perusing the exhibits proved by the prosecution and the defence, and hearing learned Advocates for the ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 4 cr-appeal-472.20.odt parties, the learned Trial Judge acquitted the accused. Hence, the State has filed the present appeal.
7. We have heard Ms. K.S.Joshi learned Additional Public Prosecutor for the State of Maharashtra and Shri V. S. Mishra, learned Advocate for the respondent. We have perused depositions of the prosecution witnesses, the material exhibits tendered and proved by the prosecution, the statement of the respondent recorded under Section 313 of the Code of Criminal Procedure and the impugned judgment
8. Before analysing the evidence available on record and going into legal aspects of the same, we feel it appropriate to first deal with the contentions advanced by learned Additional Public Prosecutor for the appellant and learned Advocate for the respondent.
9. Ms. K. S. Joshi, learned Additional Public Prosecutor for the appellant, strenuously urged that flimsy reasons for acquittal have been assigned by the Trial Judge in the impugned judgment. She firstly contended that the prosecution case is backed up by the evidence of three minor victim girls (PW 5) (Victim no.1), (PW 7) - (Victim no.2), (PW 10) (Victim No.3). She strenuously urged that account given by (PW 5)- Victim no.1, (PW 7) - Victim no.2 and (PW 10)- Victim no.3 about incidents inspires confidence. She faulted disbelieving of the ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 5 cr-appeal-472.20.odt evidence of three minor girls by the Trial Court, as being manifestly unreasonable. She urged that the view of Trial Judge in rejecting their testimony cannot be defended, as even possible view. She urged that the prosecution had succeeded in bringing home the guilt of the respondent in respect of all the charges and we should reverse the impugned judgment of acquittal. She further urged that the view of acquittal taken by the Trial Court was not possible view. In her contention, it was wholly erroneous view, in fact perverse view. She contented that this being so, the impugned order of acquittal cannot stand.
10. Shri V. S. Mishra, learned Advocate for the respondent submitted that there are material contradictions in the testimonies of the witnesses examined by the prosecution. He submitted that the victim girls in their testimonies have not given details about date and month of incidents. The learned Trial Judge has rightly disbelieved evidence of victim girls and other witnesses. He submitted that view of the Trial Court is a possible view and merely because another view is possible, it may not be reason for interference in microscopic power of this Court in appeal against acquittal. He, therefore, prayed for dismissal of appeal.
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11. At the very outset, we would like to point out that we are seized of the matter in an appeal against acquittal. It is well settled that unless appreciation of evidence is clearly unreasonable or the impugned order of acquittal is vitiated by some illegality, this Court does not interfere in an appeal against acquittal. It is equally well settled that if the view of acquittal is a possible view then this Court does not interfere even though it may feel that had it been the Trial Court, it may have taken a different view.
We are fortified in our view by the decisions of the Apex Court reported in (1970) 2 SCC 450, Khedu Mohton Vs. State of Bihar and (1987) 2 SCC 529 , Tota Singh and another Vs. State of Punjab . We also feel that in this connection, it would be pertinent to refer to the decision of the Apex Court reported in (1995) 2 SCC 486 reported in State of Punjab Vs. Ajaib Singh, wherein in para 7, Their Lordships of the Apex Court observed thus:--
"We agree that this Court is not precluded or the court hearing the appeal against acquittal is not prevented from examining and reappreciating the evidence on record. But the duty of a court hearing the appeal against acquittal in the first instance is to satisfy itself if the view taken by acquitting court exercising appellate jurisdiction was possible view or not. And if the court comes to conclusion that it was not, it can on reappreciation of evidence reverse the order."::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 :::
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12. Similarly, in the case of State of Punjab Vs Gurmeet Singh,1996 (2) SCC. 384, the Supreme Court has taken a view that the Courts dealing with rape cases shoulder a greater responsibility and must deal with such cases with atmost sensitivity. The Supreme Court has observed thus:
"....It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 :::
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13. The Hon'ble Apex Court in Pooja Pal v. Union of India reported in (2016) 3 SCC 135 in paragraph Nos.54 and 55 highlighted the role of Court. It has been observed that due administration of justice is a continuous process and a Court must cease to be a mute spectator and a mere recording machine. It has to become a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion. It is laid down that the Court has overriding duty to maintain public confidence in the administration of justice and they cannot turn a blind eye to vexatious and oppressive conduct discernable in relation to the proceedings.
14. In the backdrop of aforesaid legal position, we have examined whether evidence of prosecution makes out a case of aggravated penetrative sexual assault and rape by the respondent accused on three minor victims (Age 9 years on the date of incident). At the outset, the prosecution has to establish that the victims of crime in question, at the time of the alleged offence, were below 12 years of age. The prosecution, in order to prove age of victims (PW 5) - Victim no.1, (PW 7) - Victim no.2 and (PW 10) - Victim no.3 has relied on Birth Certificates of two minor victim girls placed on record vide Exhibits 49, 50 and 51. The learned Trial Judge by accepting documentary evidence and holding that age of victim girls is not disputed, recorded a finding that the prosecution has proved first mandatory ingredient that age of ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 9 cr-appeal-472.20.odt victim girls was below 12 years on the date of commission of the offence. We are in agreement with learned Trial Judge on this point.
15. Now, let us examine evidence of minor victim girls. (PW 5)
- Victim No.1 stated that when she was studying in 4 th standard and the accused was her class teacher, the accused used to take her to class room in the recess at 2:00 pm in the absence of the Headmaster, the accused used to tickle her, he used to slip her down and used to make her sit on his lap. She stated that the accused used to touch her chest by his hand while sleeping her down. She stated that he did such act with (PW 7) - Victim no.2 and (PW 10) - Victim no.3. She stated that he did such act with her four to five times.
16. The learned Trial Judge disbelieved the evidence of (PW 5)
- Victim no.1 by misreading her evidence. Learned Trial Judge read the term "us" to mean that (PW 5)- Victim no.1 narrated the incident of sexual assault occurred simultaneously with all three minor victim girls. The learned Trial Judge ought to have taken into consideration the testimony of (PW 5)-Victim no.1, as a whole. In our view, (PW 5) - Victim no.1 intended to communicate that similar incident happened to all three minor victims by using the term "us" .
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17. (PW 7) - Victim No.2 stated that the accused took her to classroom, closed door and windows, laid her under the table and made tickling. She stated that the accused asked her to remove her underwear but she refused, thereafter the accused inserted his hand into her private part from her underwear and when she tried to shout, the accused pressed her mouth. She stated that thereafter, she felt burning sensation while passing urine. She narrated incident to her mother after two days as she had fear of her parents and accused gave her threat not to disclose said incident to anybody.
The Trial Court disbelieved the evidence of (PW 7)- Victim no.2 on the ground that she used to wear slacks everyday, but only on the date of incident she did not wear slacks. This approach of learned Trial Judge in disbelieving minor victim girl of 10 years (on the date of deposition) is, in our opinion, gross case of perversity. The reason for brushing aside the testimony of victim, who is 10 year old and, who had gone through truama of aggravated sexual assault shows complete insensitivity on the part of learned trial judge. The learned Trail Judge should have been aware about the facts that till the passing of the POCSO Act, the law did not pay much attention to the stress that child complainants in sexual offence cases suffer when they testified in Courts. Child complainants in sexual offence cases were required to relive the horror of the crime in open court. The circumstances under ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 11 cr-appeal-472.20.odt which they gave evidence and the mental stress or suffering they went through while giving evidence did not appear to be the concern of the law and, at times, they were subjected to the most brutal and humiliating treatment by being asked to relate the details of the traumatic experiences that they had gone through. Regrettably, although there were welcome exceptions, the plight of child complainants was seldom the concern of those who required them to testify or those before whom they testified. The learned Trial Judge should have kept in mind rational behind enacting the POCSO Act and should have scrutinized deposition of minor Victims keeping in mind object of enacting the POCSO Act.
18. (PW 10) - Victim no.3 in her evidence stated that the accused used to call her in the class and used to tickle her on her private part. She stated that sometimes accused used to call (PW 5) - Victim no.1 and (PW 7) - Victim no.2 with her and used to tickle them.
19. The learned Trial Judge has not assigned specific reason in her judgment as to why testimony of (PW 10)- Victim no.3 minor victim girl is disbelieved. In paragraph No.24, the learned Trial Judge has drawn inference that cumulative effect of testimony of all three victim minor girls is that the accused did alleged act with them ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 12 cr-appeal-472.20.odt simultaneously which is highly improbable. The approach of learned Trial Judge is contrary to the observations of the Hon'ble Apex Court in the case of Bharwada Bhoginbhai Hirjibhai (supra) and in the case of State of Punjab (supra).
20. The question as to whether testimony of child witness can be relied upon for basing conviction in such serious offence has been considered by the Hon'ble Supreme Court in the case of Radhey Shyam v. State of Rajasthan reported in (2014) 5 SCC 389 and in paragraph No.12 of its judgment, the Supreme Court has laid down as under:
"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 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 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."::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 :::
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21. We have gone through testimonies of minor victim girls (PW 5) - Victim no.1, (PW 7)- Victim no.2 and (PW 10)-Victim no.3 and we have no reservations in observing that their evidence inspires implicit confidence. Their evidence is not showing that they are tutored witnesses. As a matter of prudence, we have examined the evidence of (PW 3), (PW 4) and Ashok Lanje (PW 6) and we find that the evidence of minor victim girls is getting corroboration from evidence of their parents. The learned Trial judge has disbelieved the evidence of parents of minor victim girls on flimsy reasons.
22. Much is argued by the learned Advocate for the respondent-accused, relying on the medical evidence. Even if there no external injuries were found on the person of victim (PW 7) - Victim no.2, yet, her evidence regarding penetration in her vagina by the accused is trustworthy and reliable. It is well settled that even in absence of any corroboration by medical evidence, oral testimony of victim can be accepted, if it is found to be cogent, reliable, convincing and trustworthy. In the case in hand, there is absolutely no reason brought on record for false implication of the accused in the crime in question. There is absolutely no reason as to why three minor victim girls or their parents will falsely implicate their teacher with such heinous offence. It has been held by the Hon'ble Supreme Court that the testimony of the victim in rape cases is vital and unless there are ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 14 cr-appeal-472.20.odt compelling reasons which necessitate looking for corroboration to her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See : Sham Singh v. State of Haryana 2018 (18) SCC 34).
23. There is convincing evidence that the accused had inserted finger in the private part of (PW 7) - Victim no.2. The evidence in this regard remained unshattered and intact. The evidence of (PW 7) - Victim no.2 is sufficient to establish that the accused, a teacher, had inserted finger in the private part of girl child of 9 years, which amounts to 'sexual assault', as defined under Section 3 and punishable under Section 4 and "aggravated sexual assualt" under Section 5 (c) and (m) of the POCSO Act, which read as below:--
"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if-- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 15 cr-appeal-472.20.odt the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
3. Punishment for penetrative sexual assault.--Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.
5. Aggravated penetrative sexual assault.--
****
(c) whoever being a public servant commits penetrative sexual assault on a child;
********
(m) whoever commits penetrative sexual assault on a child below twelve years; or
24. The evidence of (PW 5) - Victim no.1 and (PW 10) - Victim no.3 shows that the accused used to tickle their private part and touch chest of (PW 5)- Victim no.1. The evidence of victims (PW 5) and (PW 10) is sufficient to establish that the accused had touched the private part of girls of 9 years, which amounts to 'sexual assault', as defined under Section 7 and punishable under Section 8 of the POCSO Act, which read as below:--
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16 cr-appeal-472.20.odt "7. Sexual assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
25. In so far as the intention of the accused behind touching the chest is concerned, in absence of any rebuttal material, the presumption under Section 30 of the POCSO Act would come into play. The statutory presumption of culpable mental status of the accused would apply in the case. Moreover, there is no explanation, nor there can be any explanation by the accused about his act of touching chest of a minor vulnerable girl. Since the victims were aged 9 years, the act of accused of sexual assault amounts to 'aggravated sexual assault', within the meaning of Section 9 (f) of the POCSO Act, as the accused is teacher in educational institution. All the sexual assaults on children below 12 years amount to aggravated form of sexual assault, which is the case here.
26. While ordinarily there is a 'presumption of innocence' in relation to an accused, Section 29 of the POCSO Act reverses this position. Section 29 of the POCSO Act creates a 'presumption of guilt' ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 17 cr-appeal-472.20.odt on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. Section 29 reads as under:
"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."
In the context of Section 29, another provision of the POCSO Act, which is also required to be considered is Section 30 of POSCO Act, which is extracted herein below for ease of reference:
"30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.- In this section, "culpable mental state"
includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 :::
18 cr-appeal-472.20.odt Section 30 provides that in a prosecution under the POCSO Act, where the offence requires the existence of a culpable mental state, the Court is to presume the existence of such culpable mental state on the part of the accused, while of course giving to the accused the right to rebut it beyond reasonable doubt. Again therefore, there is a presumption of culpability coupled with the right of the accused to rebut such presumption.
27. The POCSO Act was enacted to address the complaints of sexual offences against children and to establish Special Courts for trial of such offences. The Parliamentary Standing Committee on Human Resource Development of the Rajya Sabha submitted its 240 th Report on the Protection of Children from Sexual Offences Bill 2011, which gives an insight into the thought process, rationale and reasoning that went into incorporation of various provisions in the said Act. For purposes of the present discussion, apropos the reason for incorporating a reverse burden in the provisions of the POCSO Act, the Parliamentary Standing Committee had to say following in para 1.12 of its report:
"1.12 ......Secondly, keeping in view the low conviction rate of sexual offences against children,a presumption has been provided in the Bill that the accused in case of sexual assault has committed the offence unless proved contrary. It was mentioned that such a provision already existed in our law. Sections 113A and 114A of the Indian Evidence Act ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 19 cr-appeal-472.20.odt already create presumptions in two situations, cruelty for dowry and for rape. Vulnerability of the victims and the difficulty in collecting the evidence were the two factors leading to such a provision being incorporated in the Bill. Misuse of such a provision had also been taken care of by including a safeguard therein."
28. The question of when the presumption of guilt gets triggered has been addressed by the Supreme Court in the context of the NDPS Act, and by various other High Courts in POCSO cases, holding that such presumption comes into play only when the prosecution has established facts that form the basis of the presumption. In Navin Dhaniram Baraiye Vs. The State of Maharashtra, reported in 2018 Cri LJ 3393 , this Court has held as under:
"17.... 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 ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 20 cr-appeal-472.20.odt 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 clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law."
****** "23. The above quoted views of the Courts elucidate the position of law insofar as presumption of Section 29 under 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 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." ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 :::
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29. The position of law crystallized is that to rebut a presumption:
(1) the presumptive proposition must itself be formulated based on relevant and credible material; and (2) the accused must know what presumption he has to rebut.
30. The learned Trial Judge has held that unless the prosecution proves its case beyond reasonable doubt, presumption under Sections 29 and 30 of said Act is not triggered. This finding by the Trial Court is based on complete misconception of law on Sections 29 and 30 of the said Act. The prosecution has proved the foundational facts. The evidence of the victims does not suffer from any embellishment
31. Defence of the respondent-accused, in this case, is that of false implication. In statement under Section 313 of the Code of Criminal Procedure, the accused has raised defence that Lange community is by caste Pawar and the accused belongs to caste Mahar, therefore, they have involved accused in false case.
32. The Apex Court had an occasion to examine plea of false implication in sexual offences and in para 10 in the case of Bharwada ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 22 cr-appeal-472.20.odt Bhoginbhai Hirjibhai v. State of Gujarat reported in (1983) 3 SCC 217, observed as below:
"10. Without the fear of making too wide a statement or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because:--
(1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
(2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours.
(3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.
(5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.
(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself.::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 :::
23 cr-appeal-472.20.odt (7) The fear of being taunted by others will always haunt her.
(8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo.
(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy.
(10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour.
(11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocent.
(12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross- examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
We find that the accused has miserably failed to prove defence taken by him. There is absolutely no evidence on record to prove defense of accused.
33. The accused has been charged for offence under Section 9
(c) of the POCSO Act, which reads as under:
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34. From the evidence on record, the prosecution has failed to bring on record any evidence that the accused is a public servant. There is no evidence on record that the accused is in the service or pay of the Government established by or any Central Provincial or State Act. Therefore, the ingredients of Section 9 (c) of the POSCO Act are not fulfilled.
35. The prosecution has proved that the offence alleged against the accused took place in the month of November 2017. Section 376 (2)
(i) of the Indian Penal Code under which the accused was charged was in Statute Book when the offence was committed. Section 376 (2)(i) of the Indian Penal Code has been deleted with effect from 21.04.2018. Therefore, there is no legal impediment in convicting the accused for offence punishable under Section 376 (2) (i) of the Indian Penal Code.
36. After utmost circumspection, we have reached the conclusion that the prosecution has proved beyond all shadow of doubt, the commission of offence punishable under Sections 376 (2) (f) (i) (j) and 354-A and 354-B of the IPC and Sections 4, 5 (c) (m) and 10 of POCSO Act by the respondent.
We make no bones in observing that in reaching the said conclusion, we have borne in mind the time-honoured principles, which ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 25 cr-appeal-472.20.odt this Court keeps in mind while interfering in an appeal against acquittal, namely, that the interference should only be made, if either the assessment of the evidence by the acquitting Court is grossly unreasonable or the impugned order of acquittal suffers from any manifest illegality, which has occasioned in the failure of justice.
We have kept in mind the golden rule that if two views are equally reasonable; one of acquittal and one of conviction then, the mere circumstance that this Court is inclined to take the latter view would be no ground to reverse an order of acquittal.
37. We hold that the respondent-accused - Gopal S/o Nilkanth Janbandu (aged about 48 years, R/o Arjuni-Mor, District Gondia), is guilty of commission of offences punishable under Sections 376 (2) (f)
(i) (j), 354-A and 354-B of the Indian Penal Code and Sections 4, 5 (m) and 10 of the Protection of Children From Sexual Offences Act.
38. After hearing of the appeal concluded on 16th December, 2020 and the matter was closed for judgment, the respondent-accused was directed to remain present before this Court on the date of judgment, which we had fixed today i.e. 21st December, 2020. Today, learned Advocate for the respondent-accused submitted across the bar photo-copy of the Certificate dated 19.12.2020, which has been issued by the Medical Officer, Rural Hospital, Deori, Dist. Gondia and ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 14:09:33 ::: 26 cr-appeal-472.20.odt submitted that the accused is unable to attend the Court today as per the directions given by this Court as he is not well.
39. The learned Advocate for the respondent showed willingness to make submissions on sentence.
40. Heard Shri T.A. Mirza, learned Additional Public Prosecutor for the appellant/State and Shri V.S. Mishra, learned Advocate for the respondent-accused on the point of sentence.
41. The learned Additional Public Prosecutor submitted that looking to the repetitive act of commission of offence by the respondent-accused on three different minor victims, any leniency should not be shown to him.
42. Learned Advocate for the respondent/accused prayed for leniency contending that he has to maintain his family.
43. We are not impressed with the submissions made on behalf of the respondent-accused. The respondent-accused has committed repetitive acts amounting to heinous offences on different minor victims, abusing his position as Teacher in the school. Hence, we pass the following order:
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(i) The judgment and order dated 05.01.2019 passed by the Additional Sessions Judge-1, Gondia, acquitting the respondent-accused of the charges of committing offences punishable under Sections 376 (2)(f), (i), (j) and 354-A and 354-B of the Indian Penal Code and Sections 4 (5) (m) and 10 of the Protection of Children from Sexual Offences Act, 2012 is set aside.
The respondent - accused - Gopal s/o Nilkanth Janbandu, aged about 48 years, Resident of Arjuni-Mor, District Gondia, is convicted for the offences punishable under Sections 376 (2)(f), (i), (j) and 354-A and 354-B of the Indian Penal Code and Sections 4 (5) (m) and 10 of the Protection of Children from Sexual Offences Act, 2012.
(ii) The respondent-accused is acquitted of charge of committing offence under Section 9(c) of the Protection of Children from Sexual Offences Act, 2012.
(iii) In view of Section 42 of the Protection of Children from Sexual Offences Act, 2012, we direct that the respondent-accused shall undergo rigorous imprisonment for twenty years.
We direct that during the first ten years of sentence, the respondent-accused shall not be entitled for release on furlough leave, and if he is released on parole leave during the first ten years of his sentence, he will not enter the limits of Municipal limits of Gondia District.
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(iv) We further direct that the respondent-accused shall pay fine of Rupees One lakh Eighty Thousand only. If the respondent-accused fails to deposit the amount of fine, it be recovered as arrears of land revenue. If the amount of fine is not recovered even as arrears of land revenue for some reasons, the respondent-accused shall not be entitled for release on furlough leave during the subsequent period of sentence i.e. after period of ten years till he undergoes complete sentence as directed by this order.
If the amount of fine is deposited as or recovered as land revenue, out of it, Rupees Fifty Thousand be paid to each of the Victim Nos.1, 2 and 3, as compensation and the balance amount of Rupees Thirty Thousand be deposited in the account of the appellant-State of Maharashtra.
(v) As the respondent-accused/ Gopal S/o Nilkanth Janbandu (aged about 48 years) resident of Arjuni-Mor, District Gondia is not present inspite of the directions given by order dated 16.12.2020, we direct the Superintendent of Police, Gondia, to take steps to take him in custody immediately and submit report of compliance.
The learned Registrar (Judicial) of this Court shall send the writ of operative part of the order to Sessions Judge, Gondia and also to Superintendent of Police, Gondia to ensure immediate compliance of this order.
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(vi) The respondent-accused shall be entitled for set-off under Section 428 of the Code of Criminal Procedure, for the period undergone by him.
(vii) The bail bond, if any, of the respondent-accused shall stand cancelled.
(viii) Muddemal property be dealt with according to law.
(ix) The appeal is allowed accordingly. (x) The copy of the judgment attested by Private Secretary be
given to the learned Advocate for the respondent-accused till 3.00 p.m. today.
JUDGE JUDGE
ambulkar
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