Bombay High Court: In an appeal filed by the Appellant against the judgment of Additional Sessions Judge, Nashik, dated 30-09-2015, convicting him under Sections 376(2)(f), 377, and 363 of the Penal Code, 1860 (‘IPC’), the Division Bench of Suman Shyam* and Shyam C. Chandak, JJ., allowed the appeal and held that the failure to examine the victim or the Police Sub-Inspector (‘PSI’) without any explanation amounted to denial of a fair trial. The Court emphasised that this deprived the Accused of an opportunity to prove his innocence and concluded that the conviction under Sections 376(2)(f) and 377 IPC was liable to be set aside by giving the benefit of doubt.
Background:
The victim, aged about 3 years at the time of the incident, was taken from her mother’s custody by the Accused on 03-10-2013 around 10 a.m. on the pretext of buying new dresses. She did not return home, and a missing complaint was lodged the same day, followed by a report the next day. After four days, the victim was found at Mumbra Railway Station by a search team, in a naked condition with her knicker removed. She was shifted to the police station, where she complained of pain in her lower abdomen. Upon examination, her mother found injuries and swelling in her private parts. When asked, the victim narrated that the Accused had sexually assaulted her by removing her knicker, inserting his private part into hers, shutting her mouth, and slapping her when she cried.
After recording prosecution evidence, the Accused’s statement was recorded under Section 313 of the Criminal Procedure Code, 1973 (‘CrPC’), where he denied all incriminating circumstances. He claimed innocence and stated he was falsely implicated due to a property dispute with his brother. He did not adduce any evidence. On conclusion of trial, the Judge convicted him under Sections 376(2)(f), 377, and 363 IPC and sentenced him to life imprisonment under Sections 376(2)(f) and 377 and to three years under Section 363 of the IPC with fines, and all sentences were to run concurrently. Aggrieved by the order, the accused approach the High Court.
Analysis and Decision:
The Court emphasised that although the prosecution had established that the Accused had taken the victim from her mother’s custody, the fact remained that she was found after four days at a railway station, lying in front of a hut. The Court pointed out that the station, being a public place, had many travellers daily, yet no witness was examined who saw the victim with the Accused at Mumbra Railway Station. The Court further noted that there was no explanation as to how she reached there, since the four-day gap was substantial, and there was nothing on record about what the victim went through during that time. Therefore, her testimony was essential, and the Court could not presume that only the Accused had sexually abused her.
The Court referred to Reena Hazarika v. State of Assam, (2019)13 SCC 289, wherein it was held that without the requisite facts and circumstances, it would not be sufficient to shift the onus upon the Accused under Section 106 of the Evidence Act, 1872 (‘Evidence Act’). The Court highlighted that in a criminal case, persuasive burden under Section 101 of the Evidence Act to establish the charge beyond reasonable doubt would always lie on the prosecution and the said burden will never shift upon the Accused. The Court further clarified that in cases of secretive offences, the Accused had a burden under Section 106 of the Evidence Act to explain facts within his knowledge, including how the victim suffered injury and failure to do so could raise a presumption of guilt, but only if the prosecution had first established all links in the chain of circumstances.
The Court emphasised that, save and except for the fact that the Accused had taken the victim from her mother’s custody on 03-10-2013 for buying garments, there was no other evidence connecting him with the alleged sexual assault. The Court noted that there was not even an iota of evidence indicating what transpired until the child’s recovery from Mumbra Railway Station, as the prosecution had also failed to adduce any forensic evidence linking the Accused to the offence.
The Court further observed that the conduct of the Accused in forcefully taking the victim from her mother’s custody, not returning home, and failing to offer any plausible explanation raised strong suspicion of wrongdoing, however, law was well settled that suspicion, howsoever strong, could not take the place of proof, unless there was evidence on record connecting the Accused with the offence under Sections 376(2)(f) and 377 IPC, his conviction under those sections would not be sustainable.
The Court referred to Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, wherein it was observed that the concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it was the community that acted through the State and the prosecuting agencies. If a Criminal Court was to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by a participant in the trial evincing intelligent, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community it served.
The Court observed that unless the Accused was granted a fair opportunity to defend himself, the conviction would stand vitiated. The Court noted that neither the child was examined as a witness nor PSI, who recorded the victim’s statement, was called. The prosecution’s failure to examine them, without any explanation, amounted to denial of opportunity to prove innocence and fair trial to the Accused. The Court referred to J. Jayalalitha v. State of Karnataka, (2014) 2 SCC 401, where it was held that a free and fair trial was a sine qua non of Article 21 of the Constitution, and the right to a fair trial was not only a basic fundamental right but also a human right. Therefore, any hindrance to a fair trial could be violative of Article 14 of the Constitution.
The Court, while allowing the appeal, set aside the conviction of the Appellant under Sections 376(2)(f) and 377 IPC by giving him the benefit of doubt. The Court interfered with the conviction and sentences imposed under those provisions but affirmed the conviction and sentence under Section 363 IPC. Since the Appellant had spent over 10 years in jail, which was the maximum sentence under Section 363 IPC, the Court directed he be set at liberty unless needed in another case.
[X v. State of Maharashtra, Criminal Appeal No. 188 of 2023, decided on 14-08-2025]
*Judgment authored by: Justice Suman Shyam
Advocates who appeared in this case:
For the Appellant: Sandeep Karnik, Legal-aid appointed Advocate
For the Respondents: Deepa Punjabi, Legal-aid appointed Advocate, G. P. Mulekar, APP
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