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 the victim 12-10-2001 is duly proved, and is indeed 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 the statutory presumption under Section 29 of the POCSO Act is absolute, must be rejected, if the suggestion is that even if foundational facts are not established, the prosecution can invoke the statutory presumption. Such an interpretation of Section 29 of the POCSO Act would render the said provision vulnerable to the vice 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 on the accused is not to rebut the presumption beyond 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.
6. 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 to be innocent till the guilt is conclusively established beyond reasonable doubt. In the factual matrix, at best, the prosecution has succeeded in bringing on record material giving rise to some suspicion. However, it is trite law that suspicion is not a substitute to proof. The gulf between "might have committed" and "must have committed" must be bridged by the prosecution by unimpeachable and confidence inspiring evidence. The fact that Hindi test books were found on the bench of the victim who was answering the Hindi paper, that the Investigating Officer did not make any enquiry with the victim and that the Investigating Officer did not make any effort to record the statement of the seventeen students who were present in the examination hall when the incident allegedly happened, cumulatively creates a doubt, and the doubt is not a speculative or fanciful doubt, about the veracity of the version of the victim. The benefit of this nagging doubt must necessarily go to the accused.
The appellant is assailing the judgment and order dated 21-11-2017 rendered by the learned Additional Sessions Judge, Gadchiroli in Special (POCSO) Case 2/2017, by and under which the appellant-accused is convicted for offence punishable under Section 354 of the Indian Penal Code ("IPC" for short) and is sentenced to 2 apeal600.17 suffer rigorous imprisonment for three years and to payment of fine of Rs.2,500/- and is further convicted for offence punishable under Section 10 of the Protection of Children from Sexual Offences Act ("POCSO Act" for short) and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.2,500/-.
2. P.W.1 victim was a 10th standard student of Government Ashram School at Bhadbhidi, Tahsil - Chamorshi, District - Gadchiroli. The accused was a Mathematic Teacher working on honorary basis. The incident occurred on 19-10-2016. It is not in dispute that the victim was answering the Hindi subject paper and the accused was the Invigilator. The version of the victim is that when she was answering the Hindi paper, the accused sat besides her and touched her breast. The victim assumed that the touch was accidental. The accused then pressed her thigh, yet the victim did not react. The accused again pressed the breast of the victim, who started crying and leaving the answer-sheet in the table went to her room in the hostel. She disclosed the incident to Smt. Barsagade (P.W.3), the lady Superintendent of the hostel, who disclosed the incident to the other Teachers and the Headmaster. As asked by the Headmaster (P.W.2), the victim penned her version of the incident (Exhibit 17). The Headmaster (P.W.2) 3 apeal600.17 lodged report at Ghot Police Station. On the basis of the said report offence punishable under Section 354-A of the IPC and Section 8 of the POCSO Act was registered against the accused. Upon culmination of the investigation, charge-sheet for offence punishable under Section 354-A of the IPC and Section 8 of the POCSO Act was filed in the Court of Sessions Judge, Chamorshi.
The learned Sessions Judge framed charge (Exhibit 14) for offence punishable under Section 354 of the IPC and Section 9(f) of the POCSO Act against the accused. The accused abjured guilt and claimed to be tried in accordance with law. The defence as is discernible from the trend and tenor of the cross-examination and the written statement submitted under Section 313 of the Criminal Procedure Code, 1973 is of total denial and false implication. The prosecution examined five witnesses including the victim. The accused is convicted for offence punishable under Section 354 of the IPC and Section 10 of the POCSO Act, as afore stated. The edifice of the prosecution case is constructed entirely on the testimony of the victim. It has come in evidence that along with the victim seventeen students of Class 10 were appearing for the examination. Concededly, the Investigating Officer, for reasons inexplicable, has made no enquiry with any of the students who took the examination with the victim.
4 apeal600.17 The Investigating Officer did not record the statement of any student who was present in the class room when the incident allegedly occurred.
3. The leaned Counsel for the accused Shri A.K. Bhangde would submit that while there is no quarrel with the proposition that the conviction can rest solely on the basis of the testimony of the prosecutrix, the testimony must necessarily be implicitly reliable, trustworthy and confidence inspiring. Shri A.K. Bhangde would submit that if the evidence of the prosecutrix is not of sterling quality and if the evidence is not entirely reliable, it would be extremely hazardous to base the conviction on her sole testimony. Shri A.K. Bhangde would emphasis that the investigation is ineffective and incompetent at best and unfair at worst. It is indubitable, that the police did not make any enquiry with the victim, is the submission. It does not appear to be in dispute that the police did not record the statement of the victim. Exhibit 30 is a communication addressed by the Investigating Officer (P.W.5) to the Magistrate at Chamorshi requesting that the statement of the victim be recorded under Section 164 of the Criminal Procedure Code. The victim (P.W.1) does state that her statement was recorded at Chamorshi. A Statement purportedly recorded by the learned 5 apeal600.17 Magistrate under Section 164 of the Criminal Procedure Code on 28-10-2016 is on record. However, although the said statement was produced along with the charge-sheet, no attempt was made by the prosecution to tender the said statement in evidence much less to prove the statement. The statement on record which purports to be the statement of the victim recorded under Section 164 of the Code of Criminal Procedure is not referred to in the evidence of either the victim or the Investigating Officer. Exhibit 17 is a complaint written by the victim at the instance of the Headmaster (P.W.2). This complaint was apparently forwarded by P.W.2 to Police Station Ghot along with the report Exhibit 19. It has also come in the evidence of the Headmaster (P.W.2) that a statement was also obtained from the accused and was made available to the police. The investigation depicts an extremely sorry state of affair. It is more than apparent that the investigation is not only ineffective and amateurish, the same dangerously borders on the unfair. The incident allegedly occurred when eighteen students of Class 10 were answering the Hindi paper. The victim was sitting on the first bench in the second row. The distance between the bench on which the victim was sitting and the first bench in the third row, is according to the victim, was barely nine inches. The failure of the Investigating Officer to record the statement 6 apeal600.17 of the students who were answering the Hindi paper along with the victim is inexplicable. The Investigating Officer was clearly not alive to his duty.
4. It is admitted by the victim that Hindi books were found on her desk by the accused. The victim was suggested that since the Hindi books were found or discovered by the accused, she left the examination hall crying. The defence, obviously, is that in order to escape the consequences of the unfair practice while answering the Hindi paper, the victim falsely implicated the accused.
5. 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 the victim 12-10-2001 is duly proved, and is indeed 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 the statutory presumption under Section 29 of the POCSO Act is absolute, must be rejected, if the suggestion is that even if foundational facts are not established, the prosecution can invoke the statutory presumption. Such an interpretation of Section 29 of the POCSO Act 7 apeal600.17 would render the said provision vulnerable to the vice 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 on the accused is not to rebut the presumption beyond 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.
6. 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 to be innocent till the guilt is conclusively established beyond reasonable doubt. In the factual matrix, at best, the prosecution has succeeded in bringing on record material giving rise to some suspicion. However, it is trite law that suspicion is not a substitute to proof. The gulf between "might have committed" and "must have committed" must be bridged by the prosecution by unimpeachable and confidence inspiring evidence. The fact that Hindi test books were found on the bench of the victim who was answering the Hindi paper, that the Investigating Officer did not 8 apeal600.17 make any enquiry with the victim and that the Investigating Officer did not make any effort to record the statement of the seventeen students who were present in the examination hall when the incident allegedly happened, cumulatively creates a doubt, and the doubt is not a speculative or fanciful doubt, about the veracity of the version of the victim. The benefit of this nagging doubt must necessarily go to the accused.
7. On a holistic re-appreciation of the evidence on record, I am inclined to give the benefit of the doubt to the accused.
8. The judgment and order impugned is set aside and the accused is acquitted of offence punishable under Section 354 of the IPC and Section 10 of the POCSO Act.
9. The accused is in jail. He be released from custody forthwith unless his custody is required in any other case.
10. The appeal is allowed and is disposed of JUDGE
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