Bombay High Court
Deepak Babasaheb Gaikwad vs The State Of Maharashtra And Anr. on 14 August, 2025
2025:BHC-AS:35291-DB 901 APEAL 188-23-CR.DOC
Priya Soparkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 188 OF 2023
Mr. Deepak Babasaheb Gaikwad,
Age: 34 years,
R/at : Vasahat No.1, Indiranagar,
Dist. Nashik.
(Presently lodged in Nashik Road Central ...Appellant
Prison)
Versus
1. The State of Maharashtra
(Through Ambad Police Station, Nashik,
Dist. Nashik)
2. XYZ (Through Ambad Police Station,
...Respondents
Nashik, Dist. Nashik)
Mr. Sandeep Karnik, Legal-aid appointed Advocate, for the
Appellant.
Ms. Deepa Punjabi, Legal-aid appointed Advocate, for Respondent
No.2.
Ms. G. P. Mulekar, APP, for Respondent No.1/State.
CORAM: SUMAN SHYAM &
SHYAM C. CHANDAK,
JJ.
RESERVED ON : 29th JULY, 2025.
PRONOUNCED ON: 14th AUGUST, 2025.
Digitally
signed by
PRIYA
PRIYA
RAJESH
RAJESH
SOPARKAR Page 1 of 30
SOPARKAR Date:
2025.08.14 th
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JUDGMENT (Per : Suman Shyam J.):
–
1. Heard Mr. Sandeep Karnik, learned Legal-aid counsel
appearing for the Appellant. Also heard Mr. G. P. Mulekar, learned
APP appearing for the State/Respondent No.1 and Ms. Deepa
Punjabi, learned Legal-aid counsel appearing for Respondent No.
2.
2. This criminal appeal, preferred under Section 374(2) of the
Code of Criminal Procedure, 1973 (Cr.P.C.) arises out of the
judgment and order dated 30th September, 2015 passed by the
learned Additional Sessions Judge, Nashik in connection with
Sessions Case No. 106 of 2014, whereby the sole Appellant was
convicted for committing the offence punishable under Sections
376(2)(f), 377 and 363 of the Indian Penal Code (IPC). For
committing the offence punishable under Section 376(2)(f) of the
IPC, the Appellant/Accused was sentenced to undergo rigorous
imprisonment for life and to pay fine of Rs.10,000/-; for the
offence punishable under Section 377 of the IPC, he was sentenced
to suffer rigorous imprisonment for life and also to pay fine of
Rs.5,000/-; and for the offence punishable under Section 363 of
the IPC, he was sentenced to undergo rigorous imprisonment for 3
years and to pay fine of Rs. 5,000/-. All the sentences were to run
concurrently.
3. The prosecution story, as unfolded from the material on
record, is to the effect that the victim is the daughter of
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Complainant – Sanjay Babasaheb Gaikwad, who was aged about 3
years at the time of the incident. The brother of the Complainant,
viz., Deepak Babasaheb Gaikwad i.e. the Accused/Appellant had
come to the house of the Complainant on 3rd October, 2013 at
around 10 a.m. and took the victim girl with him from the custody
of her mother on the pretext of purchasing new dresses for her.
The victim, however, did not return home. A missing complaint
was, therefore, lodged by the father of the victim on 3 rd October,
2013. Thereafter, he had lodged a report on 4 th October, 2013,
based on which Crime No. 313 of 2013 of Ambad Police Station
was registered. After four days from the date of her disappearance,
the victim was found at the Mumbra Railway Station by the search
team lead by a PSI who was accompanied by the father of the
victim. At that time, she was in a naked condition with her knicker
removed. The victim was then shifted to Ambad Police Station. At
that time, the victim girl wanted to answer nature’s call for which
her mother had rendered the necessary assistance. Then the victim
complained of pain in her lower abdomen. When the complaint
regarding abdominal pain was examined by the mother of the
victim, it transpired that there were injuries and swelling in the
private parts of the victim. On being enquired by her mother, the
victim had narrated that the Accused had committed sexual assault
on her. The victim had stated that the accused had removed her
knicker and inserted his private part into her private part. When
she started crying, he had shut her mouth and slapped her.
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4. After completion of investigation, police had submitted
charge-sheet against the Accused, based on which charge was
framed under Sections 201, 363, 376(2)(f) and 377 of the IPC and
under Section 4 of the Protection of Children from Sexual Offences
Act, 2012 (POCSO). The Accused had pleaded innocence, hence,
he was made to face trial.
5. The prosecution case is based on circumstantial evidence. In
order to bring home the charge framed against the Accused, the
prosecution had examined eight witnesses including the Doctor
(PW 3) who had examined the victim, the PSI (PW 6) who had
arrested the Accused and sent the muddemal articles for chemical
analysis as well as the Investigating Officer (PW 7) who had
conducted investigation of the case.
6. The case of the Accused is of total denial. He had, however,
not adduced any evidence.
7. PW 1, namely, Smt. Suman Sanjay Gaikwad is the mother of
the victim. She has deposed that at the time of the incident, the
victim was three years old. On the day of the incident, the accused,
who is her brother-in-law, had come to her house at about 9.00
a.m. At that time, she was giving bath to her daughter. The
Accused made certain comments which did not go down well with
her. As such, being annoyed with such comment, she replied by
saying “Me tujhi vahini ahe, tula laj vatu de” to which the Accused
replied back by saying “Vahini mhanje ayichya jagi ahe”. At that
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time, the Accused came near her and told that he wanted to
purchase some new clothes for the victim girl. PW 1 had, however,
resisted such request of the Accused. Notwithstanding the same,
the Accused forcefully took the victim alongwith him. However,
neither the Accused nor the victim returned back home till 10.00
p.m. As such, she, alongwith her husband searched for the victim
and the Accused in the shopping complex, but could not find them.
As such, they approached the police and her husband had lodged a
missing report. After four days her daughter was found at Mumbra
Railway Station by the police and her husband who were searching
for the victim. At that time, the victim was wearing black coloured
shirt but there was no knicker on her person.
8. PW 1 has further deposed that the victim was brought to
Ambad Police Station. After reaching the Ambad Police Station, her
daughter (victim) had told her that she wanted to go for nature’s
call. She then took the victim for nature’s call. At that time, the
victim had complained that she was having pain in her private
parts. When she examined her private parts, she found that the
victim had sustained injuries on her private parts and there was
swelling. On being inquired further, the victim had disclosed that
the Accused took her to the railway station at Nashik. He gave her
chocolates, biscuits and peanuts. Thereafter, he committed mis-
deeds. The victim had told her that “He removed her knicker and
inserted his private part into her private part”. The victim started
crying, but he shut her mouth and slapped her. According to PW 1,
there was bleeding from the private parts of the victim. The
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Accused had wiped out the bleeding from her knicker and washed
her private parts under the tap at the railway station and threw
away the knicker in the railway station. PW 1 has further deposed
that she had narrated the entire incident, as disclosed to her by the
victim as well as the injuries witnessed by her, to her husband and
the police. Thereafter, the victim was referred to the Nashik Civil
Hospital, wherein she remained admitted for about 15 days.
During her cross-examination, PW 1 has replied that Accused
Deepak used to stay in the railway station and he did not come
home. She has admitted that she had disliked the Accused visiting
her home. However, she had denied the suggestion that the
Accused used to help her husband financially. The witness has
further denied the suggestion that the victim was unable to speak
and has clarified that her daughter was able to communicate with
her in their “Vadari” language.
9. The father of the victim who is the Complainant in this case,
viz, Sanjay Babasaheb Gaikwad, was examined as PW 2. In his
testimony he has deposed that the victim is his daughter. The
incident took place on the day of Bakari Eid of last year. He was a
labourer by profession. On that day, he went to work at about 9.00
a.m. living his wife and children at home. He came to know that in
his absence, his brother-Deepak Gaikwad had come to his house.
His wife (PW 1) told him that Accused Deepak took away his
daughter alongwith him. PW 2 has confirmed that he had lodged
report with the police against the Accused. Exh. 16 is the report.
The witness has further deposed that his daughter was found at
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Mumbra railway station in a naked condition. In his cross-
examination, PW 2 has confirmed that the Accused is his brother.
He has also stated that the Accused had assaulted his uncle as the
latter was not inclined to give him the room. As a result of the
assault on his uncle, he has received possession of the room. The
witness has also denied his suggestion that he has deposed falsely
so as to punish the Accused in order to avoid giving his share in
the residential property.
10. PW 3-Dr. Vaishali Vitthal Giri was the Medical Officer
attached to Civil Hospital, Nashik. She was on duty on 7 th October,
2013, when she received a letter for examining the victim girl.
After obtaining the consent of the father of the victim, she started
examining the victim girl. During her examination, PW 3 had
noted that there was no external injuries found on the victim.
However, on local examination, she had found that there were
bruises on the Labia Majora and it was edematous. Labia Minora
was having bruises and edematous. Fourchette was having
laceration 4/1.5 x 1.5 c.m. Vulva was having laceration involving
forced vaginal wall fourchettee. Perineum fresh tear on anal canal
was present. She has further deposed that there was thick,
yellowish, greenish discharge from vagina and cervix. Tear was
present in anus alongwith thick, yellowish and greenish discharge.
PW 3 has opined that there was sexual assault on the victim. PW 3
has further deposed that the vaginal tear was due to forceful
sexual assault. In her cross-examination, PW 3 has stated that the
sexual assault may have occurred 2-3 days prior.
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11. PW 4-Sopan Gangaram Jadhav is a panch witness. He has
deposed that on 5th October, 2013, police had called him near the
house of Sanjay Babasaheb Gaikwad at Indiranagar to act as a
panch. Another panch-Bhikaji Laxman was also present alongwith
him. PW 4 has proved his signature in the panchanama drawn at
about 9.00 a.m. to 9.30 a.m. on 5 th October, 2023 at Exh. 26.
Cross-examination of this witness was declined.
12. Ms. Ashwini Ashok Patil, PSI who was asked to search for
the victim girl, was examined as PW 5. She has deposed that while
she was attached to Ambad Police Station on 6 th October, 2013, her
superior PSI Gavit directed her to visit Kolsewadi. Accordingly, she
had visited Kolsewadi, District-Thane in search of the victim girl.
However, she could not find the girl in the vicinity of Kolsewadi. At
that time, the father of the victim was alongwith her. Thereafter,
she went to Mumbra railway station. There was a slum area near
Mumbra Police station. She found the victim girl lying on the floor
outside one hut. She was wearing shirt. Father of the victim (PW
2) had identified the girl. Thereafter, they brought the victim girl
to Ambad Police Station and she was handed over to PSI Gavit. She
had forwarded the report to PSI Gavit.
13. Dhanshri Anandrao Patil was also attached to Ambad Police
Station in the month of August, 2013. She was examined as PW 6.
This witness has deposed that on 23rd October, 2013, she had
received the investigation of Crime No. 313 of 2013. The clothes of
the victim girl and samples for chemical analysis was forwarded by
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her on 24th November, 2013. She had arrested the Accused on 3 rd
February, 2014 by drawing arrest panchanama. After his arrest, the
Accused was referred for medical examination. She had later
collected the clothes and samples of the Accused and forwarded
the same for chemical analysis. This witness had further deposed
that she had visited the spot of the incident at Nashik road railway
station and had drawn up spot panchanama (Exh. 36) which bears
her signature. She has also proved Exh. 37 by which she had
referred the Accused for medical examination; Exh. 38 is the letter
dated 7th November, 2014 by means of which, she had forwarded
clothes of the victim girl and samples for chemical analysis. This
witness has further proved Exh. 40 which is the arrest
panchanama. PW 6 has denied the suggestion during her cross-
examination that she had prepared false panchanama only to show
it in the investigation.
14. PW 7-Maheshwar Mahadu Gavit was the Investigating
Officer who had carried out major part of the investigation in
connection with Crime No. 313 of 2013 and submitted charge-
sheet against the Accused person. He was examined as PW 7.
During his examination-in-chief, PW 7 has deposed about the usual
steps taken by him during investigation. According to PW 7, on 7 th
October, 2013, the squad formed by him brought the victim girl
from Mumbra to Nashik. Mother of the victim was called to the
Police Station. She took the victim girl to answer nature’s call. The
mother of the victim had disclosed that the victim girl was having
pain in discharging urine. When she examined the private parts of
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the victim, she found that the victim had sustained injuries in her
private parts. At that time, the mother of the victim had raised an
alarm that her daughter might have suffered sexual assault.
Therefore, the victim was referred for medical examination vide
letter-Exh. 18, which bears his signature. The Investigating Officer
has also confirmed that the clothes of the victim i.e. a shirt was
seized by drawing seizure panchanama in presence of panch. The
shirt was deposited with the Muddemal Clerk and receipt (Exh.
43) was obtained which bears his signature. Further investigation
in the matter was handed over to PSI Ghodke who had recorded
supplementary statements of the Complainant and the victim girl.
In his cross-examination, PW 7 has deposed that the squad which
was sent for investigation purposes had not recorded the
statements of the witnesses from Mumbra.
15. Ms. Lilabai Ramdas Pithekar is a key witness in this case.
She is a resident of the slum area by the name Indira Gandhi
Aawas Yojana and knows the Complainant and the victim who are
her neighbourers. She was examined as PW 8. This witness has
deposed that on the day of the incident, she had seen the Accused
near Ganpati Temple alongwith the victim girl. It was about 10.00
a.m. in the morning. She had disclosed the said fact to the mother
of the victim. The witness has further deposed that when the police
had enquired with her, she had also disclosed that she had seen
the victim girl with the Accused on the day of the incident. Her
statement was recorded by the police. This witness had also
identified the Accused in the Court. During her cross-examination
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PW 8 has admitted that when the police came to the slum for the
fist time, she had not disclosed about the fact that she had seen the
Accused with the victim girl. The witness has denied the
suggestion put to her to the effect that she did not have good
relation with the Accused and that she was deposing falsely about
the fact that she had seen the Accused taking the victim girl
alongwith him.
16. After recording the evidence of the prosecution side, the
statement of the Accused was recorded under Section 313 of the
Cr.P.C. wherein, he had denied all the incriminating circumstances
put to him. The Accused had taken the plea of innocence and has
further stated that he has been falsely implicated in the matter due
to the property dispute between himself and his brother. The
Accused, however, did not adduce any evidence. On conclusion of
trial, the learned Additional Sessions Judge had convicted the
Appellant under Section 376(2)(f), 377 and 363 of the IPC and
sentenced him as aforesaid.
17. A careful examination of the judgment and order passed by
the learned Court below goes to show that the learned trial Court
is of the opinion that sexual assault on the victim girl has been
established by the prosecution by adducing cogent evidence on
record in the form of testimony of PW 3 and the medical
documents. It also appears that the learned Court below has
heavily relied on the last seen together circumstance which was
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brought on record by the PW 1 and 8, so as to connect the
Accused/Appellant with the offences.
18. Assailing the impugned judgment dated 13th September,
2025, Mr. Sandeep Karnik, learned counsel representing the
Appellant has argued that the prosecution has completely failed to
establish the charge brought against the Appellant under Sections
376(2)(f) and 377 of the IPC and therefore, the Accused/Appellant
deserves to be acquitted in respect of those charges.
19. By referring to the fact that the victim girl was not examined
as a witness, although her statement was recorded by the
Investigating Officer PSI Ghodke and despite the fact that she was
able to narrate the incident to her mother, Mr. Karnik has further
argued that the victim girl was the best witness of the occurrence.
However, neither the victim has been examined by the prosecution
nor has the Investigating Officer- Mr. Ghodke appeared as a
witness. There is also no explanation as to why, the victim could
not be examined as a witness. Mr. Karnik therefore, submits that
the crucial witness in this case, viz., the victim girl has been
deliberately withheld by the prosecution, since she would not have
supported the prosecution case. Contending that the present is a fit
case for the Court to draw an adverse inference by invoking
Section 114(b) of the Indian Evidence Act. Mr. Karnik submits that
the appeal preferred by the Appellant deserves to be allowed by
setting aside the impugned judgment and order passed by the Trial
Court.
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20. The learned counsel for the Appellant has further argued
that the learned Court below has erroneously placed reliance on
Section 106 of the Act to convict the Appellant in as much as the
prosecution has failed to establish that there was any fact which
was especially within the knowledge of the Accused which he had
failed to disclose. Contending that there was no duty on the part of
the Accused/Appellant to explain as to under what circumstances
the victim girl has suffered sexual assault, Mr. Karnik has argued
that having regard to the totality of evidence brought on record,
the Appellant at best could have been convicted for committing
offence under Section 363 of the IPC, for which he has already
undergone the maximum jail sentence. In support of his above
arguments, Mr. Karnik has relied upon the following decisions:-
1. Kattavellai @ Devakar Vs. State of Tamilnadu, reported in
(2025) SCC Online SC 1439.
2. Rahil and anr. Vs. State (Government of N.C.T. of Delhi),
reported in (2025) SCC Online SC 1481
3. Anees Vs. State Government of NCT, reported in (2024) SCC
Online SC 757
4. Balvir Singh Vs. State of Uttarakhand, reported in (2023) 16
SCC 575
5. Reena Hazarika Vs. State of Assam, reported in (2019)13 SCC
289
6. Vinubhai Haribhai Malaviya and ors Vs. State of Gujarat and
anr., reported in (2019)17 SCC 1
21. By referring to the decision of the Supreme Court in the case
of Kattavellai @ Devakar Vs. State of Tamilnadu (supra), Mr.
Karnik has argued that the “last seen together circumstance” being
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weak evidence, conviction cannot be based solely on such
circumstance. Therefore, the impugned judgment and order passed
by the learned Trial Court suffers from serious infirmity. Mr. Karnik
has further argued that since the conviction of the Appellant is
entirely based on the last seen together theory, hence, the
impugned judgment and order passed by the learned Trial Court
suffers from serious infirmity warranting interference by this
Court.
22. Mr. Karnik has summed up by contending that by failing to
give an opportunity to the Appellant to cross-examine the victim
girl, the Appellant has been denied a fair trial. Contending that the
right to fair trial of the Accused is inbuilt in the fundamental right
guaranteed under Article 21 of the Constitution of India, Mr.
Karnik has argued that denial of fair trial, in an appropriate case,
could be sufficient to vitiate the trial as well as the judgment of
conviction passed by the learned Trial Court.
23. Resisting the above arguments, Ms. G. P. Mulekar, learned
APP for the State of Maharashtra has argued that the learned Court
below has rightly placed reliance on the testimonies of PWs 1 and
8 to come to the conclusion that it was none other than the
Appellant who had taken the victim alongwith him from the
custody of her mother and committed sexual assault on her. Since
he has failed to return the victim back to her home and has also
failed to offer any plausible explanation as to the circumstances
under which the victim has suffered assault in her private parts,
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hence, this case would come within the ambit of Section 106 of the
Act. Therefore, submits Ms. Mulekar, failure on the part of the
Appellant to offer any plausible explanation would constitute an
additional link in the chain of circumstances raising a strong
presumption of guilt of the Accused. The learned APP has,
however, submitted in her usual fairness that although the victim
girl could narrate the incident to her mother and her statement
was also recorded by PSI Ghodke, there is no explanation available
on record to show as to why, the victim was not examined as a
witness during trial.
24. We have considered the submissions made at the bar and
have also carefully scanned the material available on record. After
examining the evidence on record, it appears that there is no
controversy about the fact that on 3 th October, 2013, at about
10.00 a.m. the Appellant had come to the house of the victim and
thereafter, took the victim girl from the lawful custody of her
mother on the pretext of buying clothes for her. The aforesaid fact
has come out from the evidence of PW 1- i.e. the mother of the
victim. The testimony to the above effect also finds due
corroboration from the evidence of PW 8. PW 1 has also deposed
that when the Accused/Appellant had expressed his intention to
take the victim alongwith him, she had resisted the same.
However, the Accused forcefully took the victim alongwith him.
During cross-examination, such testimony of PW 1 could not be
shaken. It is, therefore, clearly established that on the morning of
3rd October, 2013, it was the Appellant who had taken the victim
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girl alongwith him from her home. However, there is nothing to
indicate that the Accused had returned with the victim.
25. Evidence on record further indicates that since 3 rd October,
2013, the whereabouts of the victim were not known for about 3-
4 days, i.e. the time till when she was recovered from Mumbra
railway station by a police team. A police squad headed by the PW
5 went in search of the victim. At that time, the father of the victim
was also present with them. Victim was found at Mumbra Station.
She was thereafter, brought to Ambad police station. At that time,
she felt the urge to urinate and asked her mother to take her out,
but when she went to urinate, at that time the victim had
complained of pain in her lower abdomen. When the mother of the
victim (PW 1) had examined the place, she found that there were
signs of injury on the private parts of the victim. Later on, the
victim was examined by Doctor-PW 3 who had confirmed that the
victim had suffered sexual assault. Therefore, the fact that the
victim was subjected to sexual assault is also established beyond
doubt. What would, however, fall for the consideration of this
Court, in the present proceedings, is as to whether, the prosecution
has succeeded in establishing the fact that it was none other than
the Accused who had committed the offence punishable under
Section 376(2)(f) and 377 of the IPC on the victim girl. In other
words, since the victim was taken by the Accused on 3 rd October,
2013, merely on account of his failure to offer explanation within
the ambit of Section 106 of the Act, can it be said that such
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evidence would be sufficient to convict the Appellant in the
manner that has been done by the impugned judgment.
26. In the above context, we deem it appropriate to mention
herein that by a catena of the decisions rendered by the Apex
Court, law has been firmly settled that last seen together
circumstance is a weak piece of evidence. In the case of Kattavellai
@ Devakar Vs. State of Tamilnadu (supra), the Hon’ble Supreme
Court, while discussing the various earlier decisions of the Court
on the subject, has held that the last seen theory being a weak
piece of evidence, cannot be the sole basis of conviction.
27. As has been noted hereinabove, in the present case, although
we find that the prosecution has established the fact that the
Accused had taken the victim from the custody of her mother (PW
1), what cannot, however, be ignored by the Court is the fact that
she was found after four days in a railway station, lying in front of
a hut. Railway station, it must be noted, is a public place
frequented by number of travellers/ visitors each day.
Notwithstanding the same, the prosecution has failed to examine
any witness who had seen the victim in the company of the
Appellant in the Mumbra Station. There is also no explanation as
to how the victim had reached Mumbra station. Moreover, the time
gap since the Accused was last seen in the company of the victim
and when she was recovered from Mumbra railway station, is
nearly four days which is a substantial gap. There is nothing on
record to indicate as to what the victim girl went through during
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these 3-4 days. Therefore, the victim’s testimony was essential. In
these circumstances, it is not possible for the Court to presume that
there was no scope of the victim girl to be sexually abused by any
other person saved and except the Appellant.
28. Since the prosecution had heavily relied upon the burden on
the part of the Appellant under Section 106 of the Evidence Act to
offer some explanation and has relied upon the consequences of
his failure to offer explanation, we deem it appropriate to discuss
the legal principles touching up the issue as laid down by various
judicial pronouncement of the Apex Court.
29. In case of Reena Hazarika Vs. State of Assam (supra) the
Supreme Court has observed that without the requisite facts and
circumstances, it will not be sufficient to shift the onus upon the
Accused under Section 106 of the Act. The observations made in
paragraph No.9 of the said decision would be relevant for the
purpose of this case and therefore, are being reproduced below for
ready reference:-
“9. The essentials of circumstantial evidence stand
well established by precedents and we do not consider it
necessary to reiterate the same and burden the order
unnecessarily. Suffice it to observe that in a case of
circumstantial evidence the prosecution is required to
establish the continuity in the links of the chain of
circumstances, so as to lead to the only and inescapable
conclusion of the accused being the assailant,
inconsistent or incompatible with the possibility of any
other hypothesis compatible with the innocence of the
accused. Mere invocation of the last seen theory, sans
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the onus upon the accused under Section 106 of the
Evidence Act, 1872 unless the prosecution first
establishes a prima facie case. If the links in the chain
of circumstances itself are not complete, and the
prosecution is unable to establish a prima facie case,
leaving open the possibility that the occurrence may
have taken place in some other manner, the onus will
not shift to the accused, and the benefit of doubt will
have to be given.”
30. In the case of Balvir Singh Vs. State of Uttarakhand (supra)
the Hon’ble Supreme Court has dealt with the question of burden
of proof where some facts are within the personal knowledge of
the Accused. By referring to the decision rendered in the case of
State of State of West Bengal Vs. Mir Mohammad Omar and ors 1, it
was observed that the Court should apply Section 106 of the Act in
criminal cases with great care and caution. Although it cannot be
said that Section 106 of the Act has no application to criminal
cases, yet, the onus of proof in a criminal trial would lie on the
prosecution so as to prove the guilt of the Accused. Such onus is in
no way modified by the provisions contained in Section 106 of the
Act. It has also been held that Section 106 of the Act would have
no application to cases where, the fact in question, having regard
to his nature as such, is capable of being known not only by the
Accused but also by others, if they happened to be present when
the offence took place. The observations made in paragraph
Nos.46 and 47 of the said decision are reproduced herein below:-
“46. But Section 106 has no application to cases where
the fact in question having regard to its nature is such as
to be capable of being known not only by the accused but1 (2000) 8 SCC 382
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also by others if they happened to be present when it took
place. From the illustrations appended to the section, it is
clear that an intention not apparent from the character
and circumstances of the act must be established as
especially within the knowledge of the person whose act
is in question and the fact that a person found travelling
without a ticket was possessed of a ticket at a stage prior
in point of time to his being found without one, must be
especially within the knowledge of the traveller himself.
47. A manifest distinction exists between the burden of
proof and the burden of going forward with the evidence.
Generally, the burden of proof upon any affirmative
proposition necessary to be established as the foundation
of an issue does not shift, but the burden of evidence or
the burden of explanation may shift from one side to the
other according to the testimony. Thus, if the prosecution
has offered evidence which if believed by the Court would
convince them of the accused’s guilt beyond a reasonable
doubt, the accused is in a position where he should go
forward with countervailing evidence if he has such
evidence. When facts are peculiarly within the knowledge
of the accused, the burden is on him to present evidence
of such facts, whether the proposition is an affirmative or
negative one. He is not required to do so even though a
prima facie case has been established, for the court must
still find that he is guilty beyond a reasonable doubt
before it can convict. However, the accused’s failure to
present evidence on his behalf may be regarded by the
court as confirming the conclusion indicated by the
evidence presented by the prosecution or as confirming
presumptions which might have been rebutted. Although
not legally required to produce evidence on his own
behalf, the accused may therefore as a practical matter
find it essential to go forward with proof. This does not
alter the burden of proof resting upon the prosecution.
(Wharton’s Criminal Evidence, 12th Edn. 1955, Vol. 1,
Ch.2 p 37 and foil) Leland Vs. State of Oregon reported in
1952 SCC online US SC82: 96 L Ed 1302: 343 US 790
(1952) Raffel Vs. United States reported in 1926 SCC
Online US SC 156: 70 L Ed 1054: 271 US 494 (1926).”
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31. In Anees Vs. State Government of NCT (supra) the Supreme
Court, after analyzing the law laid down in the various previous
decisions of the Court, has made the following observations in
paragraph Nos. 43, 44 and 55 which are reproduced hereinbelow :
“43. Thus, from the aforesaid decisions of this Court,
it is evident that the court should apply Section 106 of the
Evidence Act in criminal cases with care and caution. It
cannot be said that it has no application to criminal cases.
The ordinary rule which applies to criminal trials in this
country that the onus lies on the prosecution to prove the
guilt of the accused is not in any way modified by the
provisions contained in Section 106 of the Evidence Act.
44. Section 106 of the Evidence Act cannot be invoked
to make up the inability of the prosecution to produce
evidence of circumstances pointing to the guilt of the
accused. This section cannot be used to support a
conviction unless the prosecution has discharged the onus
by proving all the elements necessary to establish the
offence. It does not absolve the prosecution from the duty
of proving that a crime was committed even though it is a
matter specifically within the knowledge of the accused
and it does not throw the burden on the accused to show
that no crime was committed. To infer the guilt of the
accused from absence of reasonable explanation in a case
where the other circumstances are not by themselves
enough to call for his explanation is to relieve the
prosecution of its legitimate burden. So, until a prima
facie case is established by such evidence, the onus does
not shift to the accused.
55. If an offence takes place inside the four walls of a
house and in such circumstances where the accused has
all the opportunity to plan and commit the offence at a
time and in the circumstances of his choice, it will be
extremely difficult for the prosecution to lead direct
evidence to establish the guilt of the accused. It is to
resolve such a situation that Section 106 of the Evidence
Act exists in the statute book. In the case of Trimukh
Maroti Kirkan (supra), this Court observed that a Judge
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innocent man is punished. The court proceeded to observe
that a Judge also presides to see that a guilty man does
not escape. Both are public duties. The law does not
enjoin a duty on the prosecution to lead evidence of such
character, which is almost impossible to be led, or at any
rate, extremely difficult to be led. The duty on the
prosecution is to lead such evidence, which it is capable of
leading, having regard to the facts and circumstances of
the case.”
32. From a careful analysis of the ratio laid down in the
aforesaid judgments of the Hon’ble Supreme Court, what is crystal
clear is that in a criminal case, persuasive burden under Section
101 of the Act to establish the charge beyond reasonable doubt
would always lie on the prosecution and the said burden will never
shift upon the Accused. However, in cases where the offences are
committed in secrecy or under circumstances where save and
except the Accused persons, there is no possibility for any other
person of coming to know, as to what has transpired, in those
cases, the Accused would have a burden under Section 106 of the
Act to disclose the circumstances which are especially within his
knowledge. In doing so, it will also be incumbent upon the
Accused to explain the circumstances under which the victim had
suffered injury. Failure to offer any plausible explanation by the
accused can be viewed as an additional link in the chain of
circumstances, thus raising a presumption of guilt in respect of the
Accused. However, such presumption, would arise only when the
prosecution succeeds in establishing each link in the chain of
circumstances to establish the charge against the Accused.
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33. In a recent decision of the Hon’ble Supreme Court in Rahil
and anr. Vs. State (Government of N.C.T. of Delhi) (supra) the
aforesaid principle of law has been reinstated whereby, it has been
observed that whether it is a case of direct or circumstantial
evidence, the burden of proof always rest on the prosecution. Only
when the prosecution discharges the initial onus i.e. proves the
incriminating attending circumstances to establish the fact that the
cause of death was within the ‘special knowledge’ of the Accused,
the onus shifts and an adverse inference against the Accused may
be drawn, if he fails to discharge such onus.
34. Coming to the case in hand, as has already been observed,
save and except the fact that the Accused/Appellant had taken the
victim girl from the custody of her mother on 3rd October, 2013 for
buying garments, there is no other evidence connecting the
Appellant with the alleged offence of sexual assault on the victim.
There is not even an iota of evidence available on record so as to
indicate as to what transpired between 3 rd October, 2013 and the
time when the victim girl was recovered from Mumbra railway
station. The prosecution has also failed to adduce any forensic
evidence to connect the Appellant with the commission of the
offence of sexual assault on the victim. The conduct of the
Accused/Appellant in forcefully taking the victim girl from the
custody of her mother and thereafter not returning back home and
his failure to offer as any plausible explanation as to what had
transpired in between, would not doubt, raise a strong suspicion as
regards his wrong doings, as alleged. However, law is well settled
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that suspicion, howsoever strong, cannot take the place proof.
Unless there is evidence available on record to connect the
Accused/Appellant with the commission of offence punishable
under Sections 376(2)(f) and 377 of the IPC, his conviction under
those sections would not be sustainable in the eyes of law.
35. Having observed as above, we now revert back to the
objection raised by the learned counsel for the Appellant on the
ground of failure on the part of the prosecution to examine the
victim as a witness. As has been noted herein above, there is
credible material on record to indicate that it was the victim girl
who had narrated the incident to her mother as to in what manner,
she was sexually assaulted. She had allegedly implicated the
Accused for committing sexual assault on her. Her statement was
also admittedly recorded by the Investigating Officer Mr. Ghodke.
If that be so, it is apparent that the victim girl was in a position to
narrate the incident. Not only that, since she could communicate
with her mother in “varadi” language, hence, there was nothing
preventing the Court from recording the statement of the victim
girl with the assistance of the mother of the victim, as an
interpreter. However, as has been indicated hereinabove, the same
has been done in this case. The prosecution has also failed to offer
any explanation for not doing so.
36. We are in agreement with the submission of the learned
Legal-aid counsel appearing for the Appellant that in the facts of
the case, testimony the victim girl would have been the best
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evidence. Therefore, failure on the part of the prosecution to put
her in the witness box without any reasonable explanation would
afford a reasonable ground for this Court to draw adverse
presumption against the prosecution on the basis that had the
victim been examined as a witness, she would not have supported
the prosecution case. It appears that the learned trial Court has
also not made any attempt to unearth the whole truth by obtaining
the version of the prosecutrix, although the court below was duty
bound to do so.
37. The need to hold a fair trial by protecting the rights and
interest of the Accused as well as the victim and thereby, the
society as a whole has been emphasized by the Hon’ble Supreme
Court, time and again, in a number of judicial pronouncements. In
the case of Zahira Habibulla H. Sheikh and anr. Vs. State of Gujarat
and ors.2, it was observed that the concept of fair trial entails
familiar triangulation of interests of the accused, the victim and
the society and it is the community that acts through the State and
the prosecuting agencies. The Courts have overriding duty to
maintain public confidence in the administration of justice-often
referred to as a duty to vindicate and often to uphold the “Majesty
of the law”. If a Criminal Court is 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, so as to find out the truth and
2 (2004) 4 SCC 158
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administer justice with fairness and impartiality both to the parties
and to the community it serves.
38. In another decision of the Supreme Court rendered in the
case of Vinubhai Haribhai Malaviya and ors Vs. State of Gujarat
and anr. (supra), it has been observed that the right of fair trial is
inbuilt in the Article 21 of the Constitution of India. The
observations made in paragraph Nos.17 and 18 are reproduced for
ready reference:-
“17. Article 21 of the Constitution of India makes it clear
that the procedure in criminal trials must, after the seminal
decision in Maneka Gandhi Vs. Union of India reported in
(1978) 1 SCC 248 , be “right, just and fair and not arbitrary,
fanciful or oppressive”. Equally, in Commr. Of Police Vs.
Delhi High reported in Court (1996) 6 SCC 323 it was
stated that Article 21 enshrines and guarantees the precious
right of life and personal liberty to a person which can only
be deprived on following the procedure established by law
in a fair trial which assures the safety of the accused. The
assurance of a fair trial is stated to be the first imperative of
the dispensation of justice.
18. It is clear that a fair trial must kick off only after an
investigation is itself fair and just. The ultimate aim of all
investigation and inquiry, whether by the police or by the
Magistrate, is to ensure that those who have actually
committed a crime are correctly booked, and those who
have not are not arraigned to stand trial. That this is the
minimal procedural requirement that is the fundamental
requirement of Article 21 of the Constitution of India cannot
be doubted. It is the hovering omnipresence of Article 21
over Cr.P.C. that must needs inform the interpretation of all
the provisions of Cr.P.C., so as to ensure that Article 21 is
followed both in letter and in spirit.”
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39. In the case of J. Jayalalitha and others Vs. State of Karnataka
and ors.3 it was further observed as follows:-
“28. Fair trial is the main object of criminal procedure
and such fairness should not be hampered or
threatened in any manner. Fair trial entails the interests
of the accused, the victim and of the society. Thus fair
trial must be accorded to every accused in the spirit of
the right to life and personal liberty and the accused
must get a free and fair, just and reasonable trial on the
charge impugned in a criminal case. Any breach or
violation of public rights and duties adversely affects
the community as a whole and it becomes harmful to
the society in general. In all circumstances, the courts
have a duty to maintain public confidence in the
administration of justice and such duty is to vindicate
and uphold the “majesty of the law” and the courts
cannot turn a blind eye to vexatious or oppressive
conduct that occurs in relation to criminal proceedings.
29. Denial of a fair trial is as much injustice to the
accused as is to the victim and the society. It necessarily
requires a trial before an impartial Judge, a fair
prosecutor and an atmosphere of judicial calm. Since
the object of the trial is to mete out justice and to
convict the guilty and protect the innocent, the trial
should be a search for the truth and not a bout over
technicalities and must be conducted under such rules
as will protect the innocent and punish the guilty.
Justice should not only be done but should be seem to
have been done. Therefore, free and fair trial is a sine
qua non of Article 21 of the Constitution. Right to get a
fair trial is not only a basic fundamental right but a
human right also. Therefore, any hindrance in a fair
trial could be violative of Article 14 of the Constitution.
“No trial can be allowed to prolong indefinitely due to
the lethargy of the prosecuting agency or the State3 (2014)2 SCC 401
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machinery and that is the raison d’etre in prescribing
the time frame” for conclusion of the trial.”
40. From a careful examination of the ratio laid down in the
aforesaid decisions, we are left with no manner of doubt that
unless the Accused is granted a fair opportunity to defend his
interest in a fair trial, an order of conviction would stand vitiated
merely on such count.
41. In the above context, it would be pertinent to note herein
that the prosecution has placed heavy reliance on the version of
the victim as brought on record through her mother (PW 1) so as
to bring home the charge brought against the Accused/Appellant
under Sections 376(2)(f) and 377 of the IPC. Notwithstanding the
same, as has been noted above, the victim/prosecutrix has not
been examined as a witness. Sections 25 and 26 of the POCSO Act,
2012 lays down specific provisions for recording the statement of a
child. As per Section 26(2) the Magistrate/ police can even take
the assistance of a Translator or an Interpreter while recording the
statement of the child. Notwithstanding the same, neither the child
has been examined as a witness nor has the PSI Ghodke, who had
recorded the victim’s statement called as a witness by the
prosecution. The failure on the part of the prosecution to examine
the victim or the PSI, without any just explanation, in our
considered opinion would amount to denial of an opportunity to
the accused to prove his innocence and therefore, in the facts of
the case, would constitute denial of fair trial to the accused.
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42. From the discussions made above, we find that the evidence
brought on record by the prosecution is insufficient to establish the
charge under Sections 376(2)(f) and 377 of the IPC brought
against the Accused. There is serious doubt as to whether, it is the
Accused/Appellant who had committed penetrative sexual assault
on the victim. However, the same cannot be said in respect of the
charge framed against the accused under Section 363 of the IPC.
Having regard to the evidence of PW 1 and PW 8, we are left with
no manner of doubt that the said charge has been duly proved.
43. For the reasons stated hereinabove, we are of the opinion
that the conviction of the Appellant under Sections 377(2)(f) and
377 of the IPC is liable to be set aside, by giving him the benefit of
doubt. We accordingly interfere with the conviction of the
Appellant under Sections 376(2)(f) and 377 of IPC and set aside
the sentences imposed upon him by the learned Trial Court for
committing the offences under the aforesaid provisions. We,
however, affirm the conviction of the Accused/ Appellant under
Section 363 of the IPC and the sentences imposed on him for the
said offence.
44. Since the Appellant has already spent more than 10 years in
jail, which is the maximum jail sentence that can be awarded for
offence committed under Section 363 of the IPC, hence, we direct
the Appellant be set at liberty unless his custodial detention is
deemed necessary in connection with any other case.
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45. The appeal stands allowed to the extent indicated above.
46. Send back the record.
(SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.)
{
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