Absence of evidence and only presumption under Section 29 of the POCSO Act are not sufficient for conviction of the accused: Bombay High Court

The decision that absence of all necessary evidences and mere presumption under Section 29 of the POCSO Act are not sufficient for the accused to be convicted is by the High Court of Bombay through the learned bench led by HONOURABLE JUSTICE SMT. SADHANA S. JADHAV & HONOURABLE MR. JUSTICE S.G. DIGE, in the case of Gautam Chandrakant Khairnar Versus  The State of Maharashtra & Anr. (CRIMINAL APPEAL NO. 508 OF 2015).

Brief facts of the case are that the Respondent is the cousin of the Appellant’s wife. She had gone to live with her cousin and the Appellant, who is a school teacher to study in a school in the same village. She had completed her education till 8th standard and was in her 9th standard when the incident took place. The Appellant used to make sexual advances towards her in the night and used to frequently molest her in every four days, which increased to more frequent molestation after her sister went to her maternal home for childbirth. The Respondent was taken to a doctor and had undergone a sonography test when she missed her menstruation. She was given a pill later on by the Appellant, after which she again got her menstruation. The accused’s brother had also molested the survivor and was aware of the sonography. The accused had threatened her to fail her in the examinations incase she reveals anything about the molestation, hence the survivor remained silent regarding the same. But when she shifted to her real sister’s house in Waghadi during her 10th standard, on being taken to the doctor for sonography because of pain in her abdomen, she revealed her knowledge about sonography and hence narrated the unfortunate incident. The survivor’s two sisters, two brother-in-laws and her brother decided to file an FIR collectively and the accused was charged and convicted for offence punishable under section 6 of the Protection of Children from Sexual Offences Act, 2012(in short “POCSO Act”) and sentenced to suffer Imprisonment for life and to pay fine of Rs. 1,00,000/-(Rs.One Lakh) in default to suffer R.I. for 3 years. He was also convicted for the offence punishable under section 506 of the Indian Penal Code and sentenced to suffer R.I. for 2 years. The appellant in Cr. Appeal No. 508 of 2015, i.e. the Appellant’s brother was convicted for the offence punishable under section 12 of POCSO Act and sentenced to suffer R.I. for 3 years and to pay fine of Rs. 50,000/-(Rs. Fifty thousand) i.d. R.I. for one year. The present appeal was filed, opposing the conviction.

The counsel for Appellants, Mr. R.N. Dhorde, Sr. Counsel a/w. Mr. B.R. Warma contended that the evidence of the victim was not enough for the case. The counsel further stated that despite the fact that she was conversing with her sisters and brother over the phone, the survivor had not revealed the accused’s act The two-year silence of the grown-up daughter would speak volumes in and of itself. She told the wife of accused No. 1 about her molestation at the hands of accused No. 2, but no rationale is given for why accused No. 1’s crime was not revealed to the wife of accused No. 1. The counsel further argued that the evidences were false as the wife of the accused had given birth to their daughter at Jirali itself and did not go to her maternal home and that the sisters of the survivor had good relations with the accused’s wife and mother-in-law of the accused even after disclosure of the incident.

The learned APP, Smt. R.P. Gour, argued that the evidence presented was sufficient and that the victim was helpless and could the reveal the incident because of societal repercussions, owing to the fact that the accused was her relative. The learned APP further argued that the accused took advantage of the victim’s youth, as well as the fact that she had no living parents at the time of the crime, leaving her at the mercy of her relatives. She further stated that there is a presumption against the accused that he is guilty of the offence with which he is charged under section 29 of the POCSO Act, and that in the current case, the accused has not discharged this onus except by providing the birth certificate of his daughter.

The counsel for Respondent, Mr. Vivek M. Lomte relied on certain cases such as Independent Thought v/s. Union of India & anr.(AIR 2017 SC4904.), Ganesan v/s. State represented by its Inspector of Police[(2020) 10 SCC 573], Rai Sandeep v/s. State (NCT of Delhi)[(2012) 8 SCC 21] and requested to uphold the conviction.

The court, after hearing both the sides, came to a conclusion that, without any evidence, merely on the basis of a presumption, the accused persons cannot be convicted and acquitted both the accused persons.


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