Bombay High Court
Sanjay S/O. Rangnath Haware vs The State Of Maharashtra on 14 December, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:29598-DB
Cri.Appeal No.424/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.424 OF 2020
Sanjay s/o Rangnath Haware
age 29 years, Occu. Labour,
R/o Rohanwadi, Taluka and
District Jalna ... APPELLANT
VERSUS
1) The State of Maharashtra
Through Police Station,
Taluka Jalna, District Jalna
(Copy to be served on Public
Prosecutor, High Court of Bombay,
Bench at Aurangabad)
2) X ... RESPONDENTS
.......
Mr. R.A. Jaiswal, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent No.1
Smt. Ranjana Reddy, Advocate for respondent No.2
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 4th December, 2024
Date of pronouncing judgment : 14th December, 2024
JUDGMENT (PER : R.G. AVACHAT, J.) :
The challenge in this Appeal is to a judgment and order of conviction and consequential sentence, dated Cri.Appeal No.424/2020 :: 2 ::
9/3/2020, passed by the learned Judge, Special Court, Jalna (Trial Court) in Spl. Case (Child) No.51/2015. The material part of the order impugned herein reads thus :
(1) Accused Sanjay Rangnath Haware is acquitted under Section 235(1) of the Code of Criminal Procedure of the offences punishable under Sections 392 and 323 of the Indian Penal Code.
(2) Accused Sanjay Raghunath Haware is convicted for the offence punishable under section 376(2)(i) and 506 of the Indian Penal Code as well as for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
(3) He is sentenced to imprisonment for life and shall pay fine of Rs.10,000/- (Rs. Ten Thousand only) in default of payment of fine, he shall suffer rigorous imprisonment of 2 (two) years for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
(4) He is sentenced to suffer imprisonment for a term of 5 (five) years and shall pay fine of Rs.6,000/- (Rs. Six thousand only), in default of payment of fine he shall suffer imprisonment Cri.Appeal No.424/2020 :: 3 ::
of 1 (one) year for the offence punishable under Section 506(II) of the Indian Penal Code.
(5) No separate sentence is passed for the offence punishable under Section 376(2)(i) of the Indian Penal Code. (6) Both sentences shall run concurrently.
2. The facts giving rise to the present appeal are as follows :-
The First Information Report (F.I.R. - Exh.24) has been lodged by P.W.1 "O", father of the victim. The case, as is disclosed from the F.I.R., was that, P.W.1 was serving as an Engineer in a Company at M.I.D.C., Jalna. He was staying in a residential Apartment at Mantha Chaufuli, Jalna. On 9/7/2015, he was at his residence by 8.00 in the evening. A phone call was received on the cell phone of his wife. It was of the appellant. He had asked the victim to come at Ambad Chaufuli to get back her cell phone. According to the prosecution, this appellant and co-accused in Special Case No.52/2015 had committed a gang rape on the victim on 6 July 2015. That time, both of them had robbed the victim of her cell phone. Under the pretext of returning the said cell phone, the Cri.Appeal No.424/2020 :: 4 ::
appellant called the victim to Ambad Chafuli. He made her sit on his motorbike. He took her to a secluded place. Handed over her cell phone. Gave her threats. Forcibly took her to further secluded place and committed rape of her.
As per the case of the prosecution, the victim was below 18 years of age that time. On receipt of the phone call, she had approached police officials. Police had asked her to go ahead and they would follow her. She, therefore, dared to leave the house to get her cell phone back and with a further view to ensure the appellant is arrested. While she sat on the motorbike of the appellant, she had seen one four-wheeler approaching from behind. She thought that police personnel were therein and therefore, she joined the appellant.
3. The appellant, after having committed rape of the victim, left her. According to the prosecution, the informant was also following her. He could not locate her. About two hours went therein. He then received a phone call. It was a call from Hotel Safari. He went there. The victim was thereat frightened condition. He brought the victim back home. He then approached the Police Station on the following day and Cri.Appeal No.424/2020 :: 5 ::
lodged the F.I.R.
4. A crime vide C.R. No.173/2015 was registered for offence punishable under Sections 376, 366(A), 392, 323, 506 of the Indian Penal Code and Sections 3 and 5 of the Protection of Children from Sexual Offences Act (POCSO Act). Statement of the victim was recorded. She was medically screened. Clothes on her person were taken charge of. The appellant too was arrested. Pursuant to his disclosure statement, a stick, red cap and cell phones were also seized. In the test identification parade, the victim identified the appellant. Seized articles were sent to FSL. On completion of the investigation, a charge sheet was filed.
5. The Trial Court framed the Charge (Exh.16) for offences punishable under Sections 376(2)(i), 392, 323, 506 Part II of the Indian Penal Code and Sections 5(m) and 6 of the POCSO Act. The appellant pleaded not guilty. His defence was of false implication.
6. The prosecution, to bring home the charge, examined 11 witnesses and adduced in evidence certain Cri.Appeal No.424/2020 :: 6 ::
documents.
7. The Trial Court, on appreciation of the evidence in the case, convicted and consequently sentenced the appellant as stated above.
8. Heard. Learned Advocate for the appellant would submit that, the uncorroborated testimony of the victim shall not be the basis for convicting the appellant for a serious offence. The evidence of the victim would reveal her to be an unreliable witness. According to learned Advocate, the prosecution miserably failed to prove the victim was below 18 years of age. He, therefore, urged for allowing the appeal. The learned Advocate relied on the judgment in the case of Santosh Prasad @ Santosh Kumar Vs. The State of Bihar (Criminal Appeal No.264/2020, decided on 14/2/2020).
9. The learned A.P.P. would, on the other hand, submit that, the school admission form of the victim was produced in evidence along with the birth certificate issued by Village Pradhan of the Village Sangrampur (Page 115). The victim also gave her date of birth. Her father also stated the Cri.Appeal No.424/2020 :: 7 ::
victim was 17 years of age. The victim's evidence has been duly reinforced by the evidence of the petrol vendor and the Manager of Hotel Safari. According to her, the sole testimony of a victim of rape could be the basis of conviction. She would further submit that, it is not necessary that there has to be injury or signs of rape on private part of the victim. The learned A.P.P. has relied on the following authorities to buttress her submissions.
(1) Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753 (2) B.C. Deva @ Dyava Vs. State of Karnataka 2007 AIR (SC) (Supp) 678 (3) State of Uttar Pradesh Vs. Babul Nath 1994(3) Crimes (SC) 230 Learned A.P.P. ultimately urged for dismissal of the appeal.
10. Learned Advocate for respondent No.2 also reiterated the submissions made by learned A.P.P. and urged for dismissal of the appeal.
11. Considered the submissions advanced. Perused Cri.Appeal No.424/2020 :: 8 ::
the evidence on record. Let us turn to the evidence on record and appreciate the same.
12. P.W.1 "O" is the father of the victim. He testified that the victim was 17 years of age in the year 2015. He was at his residence by 8.00 p.m. on 19/7/2015. The victim received a phone call of the appellant asking her to come to Ambad Chaufuli and get her cell phone back. The call was received on the cell phone of his wife. He took the victim into confidence. They first decided to approach the police. Thereupon the victim told him that she had already informed the police and police asked her to wait for some time and then proceed. Police assured her that they would make combing operation (Nakabandi) of that area. He further testified that the victim therefore left the house for Ambad Chaufuli on her Scooty. He followed her after 10 minutes on his motorbike. When he reached Ambad Chaufuli, he could not locate the victim. He saw many police persons gathered at Ambad Chaufuli. He even informed the police to have not seen his daughter (victim). According to him, he took search of the victim for two hours. Thereafter he received a phone call from Cri.Appeal No.424/2020 :: 9 ::
an unknown number. The caller informed him that his daughter was near Hotel Safari Dhaba. He then went there along with police. The victim was present there. She was frightened and crying as well. She asked him to take her home. He, therefore, brought her home. On reaching home, she narrated him the appellant to have committed rape of her.
13. P.W.1 went on to state that the victim related him that when she reached near Railway Flyover, the appellant met her. He asked her to take the Scooty by Kaccha Road, lest he will kill her. While the appellant was taking her, she saw one Maruti Van coming from Mantha Chowk. She thought that the said car was of police. She therefore took the vehicle to Kaccha Road. When she noticed the car to have gone ahead, she was frightened. The appellant returned her cell phone. That time, she was also having cell phone of her mother. The appellant snatched her mother's cell phone and gave 2-3 slaps. The appellant made her to sit on his motorbike, took her to some secluded place and committed rape of her. He then left the spot. The victim then went to one petrol pump. She could not get help. She then went to Safari Dhaba/ Hotel and Cri.Appeal No.424/2020 :: 10 ::
therefrom contacted him from the cell phone of the Manager of Safari Dhaba. By that time, it was little past post 12.00 post midnight. He then lodged report with police by 12.30 midnight.
14. He was subjected to a searching cross- examination. He deposed that, his duty hours were from 8.00 a.m. to 8.00 p.m. He denied that he was at his work place at 8.00 p.m. on 9 July. He received the phone call at his work place. He was confronted with his 164 statement. Then he stated to have not remembering as to whether he stated the Magistrate that he received a phone call while he was in his Company. No police guard was deployed at their residence after the first incident. Between Mantha Chaufuli to Ambad Chaufuli there were various hotels. According to the witness, there was only Safari Hotel near the flyover. According to him, the victim contacted Local Crime Branch of Jalna Police after receipt of phone call of the appellant. In one breath he says the victim was with him while he lodged the F.I.R. Then he stated that he was alone and victim was not with him. He denied the victim had emotional relationship with one Shubham. It was suggested to him that the victim had made Cri.Appeal No.424/2020 :: 11 ::
plan to fake a rape case so that no one could marry her except her boy-friend Shubham. He denied the same. Another defence of the appellant was that, both the victim and her boy- friend had intended to stage a fake kidnapping of the victim to extract money from her father. He denied the suggestions in that regard.
15. P.W.2 Sunil is a panch witness to the seizure of clothes of the victim. The panchanama is at Exh.27.
16. P.W.3 "A" was the victim. She testified that, her date of birth was 17/3/1998. Shubham Duggad was her friend.
She has lodged F.I.R. against the present appellant on 7/6/2015 pertaining to the rape incident dated 6/6/2015. The victim went on to state that, she was present at her residence on 9/7/2015 at about 7.45 p.m. She received a phone call of one boy who had sported red cap at the time of the earlier incident. The boy asked her to come to Petrol Pump on Mantha Chaufuli to Ambad Road. He asked her to come with money to get the cell phone back. She related the incident to her sister Dipika. Dipika, in turn, approached A.P.I. Vinod Pawar. The said police officer then informed her on phone that Cri.Appeal No.424/2020 :: 12 ::
she shall go to the spot and he will follow her and give protection. She, therefore, left the house on Scooty. The appellant met her on the way. At that time, one car was coming from behind. She felt the car was of police. The appellant had come on motorbike. He asked her to sit on the motorbike and took her to a jungle area. When she refused to sit, the appellant forcibly pressed her mouth and made her sit on the motorbike. He took her to a jungle area and committed sexual intercourse. She then came back to her house and narrated the incident to her father and then her father lodged the F.I.R., as she was not feeling well. In the day time the police recorded her statement and then she underwent medical examination. She identified the appellant before the Court.
17. During her searching cross-examination, it has been brought on record that no other family member had accompanied her to the spot. She was not knowing the petrol pump suggested by the appellant to come at. She, however, proceeded by that road on the say of police. She admitted that the road Mantha Chaufuli to Ambad happens to be full with Cri.Appeal No.424/2020 :: 13 ::
traffic. There were Dhabas and Hotels on either side of the road. The appellant was riding the motorbike on one hand and had caught hold of her one hand with his another hand. She had a cell phone of her mother with her. She made a call to A.P.I. Vinod Pawar. Due to network problem, the call could not be connected. At that time, the appellant snatched the cell phone of her mother. The spot was in a jungle area. There was no road from main road up to the spot of the incident. She admitted that, one Shubham was her boy-friend. Her acquaintance with him developed on Facebook. Twice they met each other. She denied that Shubham was below 18 years of age at that time and hence, her parents were reluctant to her marriage with him. She denied the defence suggestions that she faked a case of rape and even intended to make out a fake case of kidnapping to extract money from her father. She denied that she on her own left the main road and went inside the jungle area where Shubham was waiting. On arrival of police, Shubham ran away from the spot. She denied that on return to her residence, she gave false story to her father.
18. P.W.2 is a panch witness to the seizure of clothes Cri.Appeal No.424/2020 :: 14 ::
of the victim. The panchanama is at Exh.27. P.W.4 Pravin is a witness to the crime scene panchanama (Exh.32). It is an isolated place. P.W.5 Ganesh was a Manager of Safari Beer Bar. He testified that, by 9.30 p.m., a girl had come to his hotel. She was frightened and crying as well. On her request, he allowed her to make a phone call. He gave his cell phone to her. According to him, she might have contacted her father.
19. Here the learned A.P.P. would state that the evidence of the victim got reinforced by the evidence of P.W.5 Ganesh. We will appreciate the same later on.
20. P.W.7 Ravindra was a petrol vendor, serving with a petrol pump located near Rohanwadi Bridge, Jalna. According to him, one girl had come to the petrol pump between 9.00 -
9.30 p.m. She was in frightened condition. She asked him to give her cell phone to make a call. He, however, did not give cell phone to her. So she left.
21. P.W.6 Dr. Pradnya medically screened the victim. The medical examination report is at Exh.43. We will make reference thereto while appreciating the evidence in the case. Cri.Appeal No.424/2020
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22. P.W.8 Rita was Head Mistress of RHV School. She tendered in evidence the victim's school admission form filled in by her father. It was dated 8/6/2001. The same finds place at Exh. 58, while P.W.11 Kamla, the mother of the victim produced on record Birth Certificate issued by Gram Panchayat, Sangrampur. It is at Exh.71.
23. It was issued on 3/12/2019. There is no evidence on the basis of which it was issued. She, however, gave the date of birth of the victim as 17/3/1998. Being the mother, is presumed to have known the date of birth of her daughter. We, therefore, rely on her evidence to hold the victim's date of birth as 17/3/1998. Necessarily, the victim was below 18 years of age while the alleged incident took place.
24. P.W.9 Shaikh Rafiq did the investigation of the crime. He drew the crime scene panchanama (Exh.32). Nothing incriminating was found thereat. Then he approached the Medical Officer for medical screening of the victim on 10 July 2015. He had deputed Head Constable Waghule to fetch DNA kit. Further investigation was made by some other police Cri.Appeal No.424/2020 :: 16 ::
officer.
25. P.W.10 Dixit Kumar was the said officer. His evidence indicates he arrested the appellant on 23/7/2015 and got him medically examined. It appears that, this appellant had already been arrested on 10/12 July in connection with earlier crime.
26. Aforesaid is the evidence in the case.
27. The victim was allegedly gang-raped by this appellant and his colleague just three days before. Her cell phone was allegedly with the present appellant. The appellant allegedly made a phone call on the cell phone of the victim's mother. No CDR has been placed on record in proof of the same. True, based on the record in the cell phone the appellant might have made call on the cell phone of the victim's mother. This we have to assume for want of placing on record Call Data Record between the two cell phones. Admittedly, the victim had a boy-friend - Shubham. Their friendship had been developed just 10-15 days before that too on social media. Without knowing each other therebefore, she Cri.Appeal No.424/2020 :: 17 ::
met him twice. We propose to retain our judgment delivered in Criminal Appeal No.391/2020 with Criminal Appeal No.158/2022 along with this judgment for better appreciation of the case and the reasonings. It is not that we are reading the evidence of that case in this case.
28. There is a great variance between the evidence of the informant, father of the victim and the victim herself. The evidence of informant (father of the victim) has been reproduced above. According to him, he was at his residence when the call was received. The victim shared the same with him. He followed her after 10 minutes on his motorbike. He could not locate her for two hours. The victim related him to have had approached first at one petrol pump. When she was not helped thereat, she approached Safari Dhaba and made a call to him from the cell phone of the Manager of Safari Dhaba. The evidence of P.W.1 is self-contradictory. According to him, the victim had left the residence taking with her the cell phone of her mother. Police officials had already been approached. She left the house after the police officials gave assurance. The concerned police official has not been examined in the Cri.Appeal No.424/2020 :: 18 ::
case. What kind of assurance he had given and what efforts were made to ensure safe passage of the victim. It was a crowded place whereat she met the appellant. Only finding of a four-wheeler Maruti Car coming from behind, she thought that it was a police vehicle. She, therefore, joined the appellant. the appellant took her on a motorbike to a secluded place. According to the father of the victim, the victim related him the appellant to have returned her the cell phone. Meaning thereby, when the appellant had left the victim after the alleged incident of rape, she had with her two cell phones, one of her own, and the other was that of her mother. She could have contacted him. It is not made clear by the prosecution as to what made her first go to the petrol pump and then to Safari Dhaba and the Manager of the safari Dhaba gave her phone to contact her father. If we read the evidence of the victim, she nowhere makes reference as to having been first to the petrol pump and then to Safari Dhaba and made a call to her father on cell phone. According to her testimony, after she was left by the appellant, she straightaway went to her home and narrated everything to her father who in turn went to the Police Station to lodge the report. We, therefore, Cri.Appeal No.424/2020 :: 19 ::
do not propose to rely on the evidence of P.W.7 Ravindra, Petrol vendor and the Manager of Safari Dhaba. It is not known as to why there is great variance between the evidence of P.W.1 and the victim. The same suggests P.W.1 informant might not have been at his residence when the call was received and he might not have followed his daughter. When the victim had related the incident to her sister and even the police as well, it is not known what the police officials were doing if they were in fact informed by the sister of the victim and the police had assured the victim protection and asked her to leave the home to get the cell phone back from the appellant. As such, we have only the evidence of the victim as regards the alleged incident of rape. The evidence of her father, the petrol vendor and the Manager of Safari Hotel do not reinforce the prosecution case. The victim's sister, who had informed the police, has not been examined. The prosecution did not place on record whether the victim's family had in fact informed the police and police officials had assured her protection.
29. After registration of the F.I.R., the victim was Cri.Appeal No.424/2020 :: 20 ::
medically screened by P.W.6 Dr. Pradnya Kulkarni. The medical examination report of the victim finds place at Exh.44, which reads thus :
(1) No injuries on back, breast or private parts.
(2) Pubic hairs. (3) vaginal swab, (4) Blood sample, (5) Nails collected and sent for C.A. (3) Sexual intercourse has occurred or not can't be commented.
Final report confirmed on C.A. examination report. The same indicates the Medical Officer could not comment as to whether the victim was subjected to sexual intercourse. She preserved vaginal swab, blood sample, nails etc. for chemical analysis. While going through the prosecution evidence, we do not come across evidence of any one claiming to have carried the seized articles to FSL. Admittedly, no C.A. reports have been placed on record. The Court has, therefore, no option but to raise an adverse inference that the C.A. reports are against the prosecution and have, therefore, been withheld.
Cri.Appeal No.424/2020
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30. As such, the case rests on the sole testimony of the victim. It is true that, evidence on record indicate the victim being below 18 years of age. It is however, surprising as to how she could therefore be in either Second or Third Year of Commerce Stream (Three year course). Be that as it may. The victim becomes a friend of a boy younger to her. Their friendship came into existence through social media just 15 days before the incident. The victim sent her photograph and even cell phone number to him.
31. On appreciation of the aforesaid evidence, we come to the conclusion that there was a great variance between the evidence of P.W.1 (father) and the victim. The victim's testimony is unsupported by medical evidence and Chemical Analyser's report as well since those have not been placed on record. An adverse inference, therefore, is necessarily required to be drawn.
32. The Apex Court, in the case of Vadivelu Thevar Vs. The State of Madras, AIR 1957 SC 614, held :-
"11. Generally speaking oral testimony in this context may be classified into three categories namely :Cri.Appeal No.424/2020
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(1) Wholly reliable, (2) Wholly unreliable, (3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a Cri.Appeal No.424/2020 :: 23 ::
single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
33. The Apex Court, in case of Santosh Prasad @ Santosh Kumar Vs. The State of Bihar (Criminal Appeal No.264/2020, decided on 14/2/2020, has observed as to which witness could be presumed to be a witness of sterling quality, which reads thus :
"5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under :
"22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and Cri.Appeal No.424/2020 :: 24 ::
howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar such tests to be applied, can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
34. The learned A.P.P. relied on Sections 29 and 30 of the POCSO Act. For better appreciation, we reproduce both the Sections below :
29. Presumption as to certain offences.-- Where a person is prosecuted for committing or abetting Cri.Appeal No.424/2020 :: 25 ::
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.
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."
35. For better appreciation, Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act are para materia with Sections 29 and 30 of the POCSO Act relied on by learned A.P.P. The Apex Court, in case of Noor Aga Vs. State of Punjab & anr., (2008) 16 SCC 417, observed thus :
"56. The provisions of the Act and the punishment prescribed therein being indisputedly stringent flowing from elements such as a hightened standard Cri.Appeal No.424/2020 :: 26 ::
for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/- as also the presumption of guilt emerging from possession of narcotic drugs and psychotropic substances, the extent of burden to prove the foundational facts on the prosecution i.e. "proof beyond all reasonable doubt" would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the Court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance with the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of "wider civilisation". The Court must always remind itself that it is a well- settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Punjab V. Baldev Singh [ (2006) 12 SCC 321 ] , it was stated (SCC p. 199, para 28) :
"28. ... It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed."
57. It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking the conscience of any Court but it is well settled that, suspicion, however high it may be, can under no circumstances, be held to be a substitute for legal evidence.
Cri.Appeal No.424/2020
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58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt"
but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
36. For the aforesaid reasons, the appeal succeeds. Hence the order :
ORDER
(i) The Criminal Appeal is allowed.
(ii) Conviction of the appellant and the consequential sentences, recorded by learned Judge, Special Court, Jalna (Trial Court) in Spl. Case (Child) No.51/2015 are hereby set aside. The appellant is acquitted of the offences punishable Cri.Appeal No.424/2020 :: 28 ::
under Section 376(2)(i) and 506 of the Indian Penal Code and for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The appellant be set at liberty forthwith if not required in any other case. Fine amount, if paid, be returned to him.
(iii) Fees of learned Advocate Smt. Ranjana Reddy, appointed for respondent No.2 is quantified at Rs.7000/-
(Rupees seven thousand).
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-