# Satta @ Satya Prakash v. State of U.P

- **Citation:** (2023) 5 ILRA 1328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Criminal Appeal No. 2198 of 2018
- **Bench:** Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satta-satya-prakash-v-state-of-u-p-50176
- **Pages:** 12

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860- Sections 377 - Section
5/6 Protection of Children from Sexual
Offences
Act-2012-
Challenge
toConviction- medical report and the
supplementary medical report prepared by
Dr. (PW-4), it is proved that the victim
sustained injuries - the statements of
PW-1 and PW-2 gets corroboration from
the medical report-the accused-appellant
was also medically examined wherein
'alcoholic smell was found present in his
breath' and he also sustained the injuries
but the injuries of the accused-appellant
have not been proved-The statement of
PW-2)
is
natural,
without
material
contradiction and inspires confidence-Her
statement gets corroboration from the
statement of PW-1and PW-3 and medical
reports- Thus, the learned lower court had
rightly
convicted
and
sentenced
the
accused-appellant.(Para 1 to 43)

B. It is for the accused to prove the
contrary that he has not committed or
abetted the commission of an offence
under sections 3, 5, 7, and section 9 of the
POCSO Act and, in case, he fails to do so,
presumption would operate against him
leading
to
his
conviction
under the
provision of the Act. It cannot be disputed
that no presumption is absolute and every
presumption is rebuttable. It cannot be
said that the presumption under Section
29 of the POCSO Act is absolute. It will
come
into
operation
only
when
prosecution is first able to establish the
fact and that would form the foundation of
the presumption under Section 29 of the
5 All. Satta @ Satya Prakash Vs. State of U.P.
1329
POCSO Act to operate. Otherwise, entire
burden would be on the accused to prove
the contrary. Such position of law or
interpretation
of
presumption
under
section 29 of the POCSO Act cannot be
accepted as it would clearly violate the
constitutional mandate and no person can
be
deprived
of
liberty,
except
in
accordance
with
the
procedure
established by law. (Para 29)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

1328 INDIAN LAW REPORTS ALLAHABAD SERIES
informant's (P.W.1) son Sohan and when
informant Shiv Singh refused to do so, the
accused-appellant Kamal Singh with coaccused fired on Shiv Singh and Rohan
Singh by a country-made pistol causing
injuries to them on their vital parts. There is
no ground to release the appellant on
probation.

43. Considering the facts and
circumstances of the case, especially that
more than 32 years have passed since the
offence was committed and prosecution has
not produced any criminal history of the
appellant-accused, the period of sentence
awarded to appellant-accused is reduced
from three years to two years rigorous
imprisonment without modifying the fine
imposed on him. The criminal appeal is
partly allowed.

44. The appellant-accused will
surrender before the Trial Court concerned
within 30 days. The Trial Court shall take
him into custody and sent him to
appropriate jail for serving the sentence.
The period which the appellant-accused has
already undergone during investigation and
trial shall be set off according to the
provisions of Section 428 Cr.P.C. against
the sentence awarded to him.

45. Let a copy of this judgment along
with the trial court record be sent to the
court concerned for compliance.
----------
(2023) 5 ILRA 1328
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 2198 of 2018
Satta @ Satya Prakash ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
S.P.S.
Chauhan,
Smt.
Meenakshi
Chauhan

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860- Sections 377 - Section
5/6 Protection of Children from Sexual
Offences
Act-2012-
Challenge
toConviction- medical report and the
supplementary medical report prepared by
Dr. (PW-4), it is proved that the victim
sustained injuries - the statements of
PW-1 and PW-2 gets corroboration from
the medical report-the accused-appellant
was also medically examined wherein
'alcoholic smell was found present in his
breath' and he also sustained the injuries
but the injuries of the accused-appellant
have not been proved-The statement of
PW-2)
is
natural,
without
material
contradiction and inspires confidence-Her
statement gets corroboration from the
statement of PW-1and PW-3 and medical
reports- Thus, the learned lower court had
rightly
convicted
and
sentenced
the
accused-appellant.(Para 1 to 43)

B. It is for the accused to prove the
contrary that he has not committed or
abetted the commission of an offence
under sections 3, 5, 7, and section 9 of the
POCSO Act and, in case, he fails to do so,
presumption would operate against him
leading
to
his
conviction
under the
provision of the Act. It cannot be disputed
that no presumption is absolute and every
presumption is rebuttable. It cannot be
said that the presumption under Section
29 of the POCSO Act is absolute. It will
come
into
operation
only
when
prosecution is first able to establish the
fact and that would form the foundation of
the presumption under Section 29 of the
5 All. Satta @ Satya Prakash Vs. State of U.P.
1329
POCSO Act to operate. Otherwise, entire
burden would be on the accused to prove
the contrary. Such position of law or
interpretation
of
presumption
under
section 29 of the POCSO Act cannot be
accepted as it would clearly violate the
constitutional mandate and no person can
be
deprived
of
liberty,
except
in
accordance
with
the
procedure
established by law. (Para 29)

The appeal is dismissed. (E-6)

List of Cases cited:

1. St. of AP Vs Thummala Anjaneyulu (2010) 14
S.C.C. 621

2. Jai Prakash Singh Vs St. of Bih. (2012) 4 SCC
379 para 12

3. Thulia Kali Vs St. of T. N. (1972) 3 SCC 393

4. St. of Punj. Vs Surja Ram (1995) Supp 3 SCC
419

5. Girish Yadav Vs St. of M.P. (1996) 8 SCC 186

6. Takdir Samsuddin Sheikh Vs St. of Guj.(2011)
10 SCC 158. ) }

7. Woolmington Vs Dir. of Public Prosecutor
(1935) UKHL1

8. Rex Vs Abramovitch (1914) 11 Cr. App. R 45

9. Babu Vs St. of Ker. (2010) 9 SCC 189 para
27,28

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Shri S.P.S. Chauhan learned
counsel
for
the
appellant
and
Shri
Rajkamal, learned Government Advocate
for the State of U.P. and perused the record.

2. The instant criminal appeal is
preferred under Section 374 (2) Cr.P.C. by
the
accused-appellant
against
the
judgement of conviction and order of
sentence dated 30.03.2018 passed by the
learned Additional Sessions Judge, Court
No.8, Aligarh in Criminal Case No.67 of
2014 (State v. Satta @ Satya Prakash)
(arising out of Case Crime No.76/2014)
under Section 377 I.P.C. and Section 5/6
Protection
of
Children
from
Sexual
Offences Act-2012 (hereinafter referred to
as 'the POCSO Act') Police Station- Lodha,
District-Aligarh.
The
accused-appellant
Satta @ Satya Prakash was convicted and
sentenced
to
undergo
rigorous
imprisonment for a term of 10 years and
fine of Rs.10,000/-, in default of payment
of fine to undergo one year of additional
imprisonment for offence punishable under
Section 5/6 POCSO Act.

3. The prosecution case, in brief, is
that Rakesh Kumar (PW-1) S/o of Ramji
Lal resident of village Lahausara, Police
Station-Lodha, District Aligarh lodged the
First Information Report on 21.03.2014 at
06:30 PM on the basis of the written
complaint (Ex. Ka -1) alleging therein that
on 21.03.2014, the informant and his wife
(Satyavati) (PW-2) had gone to the market
at 12 'o' clock in the day to purchase some
household articles. They had left their son
aged about three years at home. When they
returned from the market at about 5 PM,
their son was not present in the house.
When they made search for their son, they
found the victim in the house of their
neighbour-Satta @ Satya Prakash, resident
of
Lahausana,
Police
Station-Lodha,
District-Aligarh. The victim was found
naked and the accused-appellant Satta @
Satya Prakash was committing the act of
sodomy on him. When they raised alarmed,
uncle of the informant-Sunil and his wife
had forcefully taken the victim in their
custody and they took the accusedappellant to the police station to lodge the
First Information Report. Constable Manish
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar
(PW-5)
prepared
chik
report
(Exhibit Ka-6) on the basis of written
complaint of the informant on 21.03.2014
at 6:30 PM and had registered the case as
Case Crime No.76 of 2014 under Section
377 IPC and Section 5/6 POSCO Act by
making necessary entry in the G.D and the
accused-appellant was taken in the custody.
The majroobi chitthi of the victim was
prepared by the Constable Manish Kumar
and the victim and the accused-appellant
Satta @ Satya Prakash were sent to the
Primary Health Centre from where they
were referred to the District Malkhan Singh
Hospital-Aligarh on the same day. Dr.
M.K. Mathur conducted the medical
examination of victim on 21.3.2014 at 8:20
PM. At the time of medical examination,
the age of the victim was found to be of
three years.

4. Following injuries were found on
the body of the victim at the time of
medical examination:-

"No external injury seen over the
body except Anal part.

Lucal examination of Anal part.

-Abraded
mucosa
of
Anal
Sphincter.

-Abrasion present Anterior of
part of Anal orifice.

-Discharge mucus present in Anal
Canal & two slides of discharge preserved
for Histopathogical examination.

Opinion-Sign of some hard long
thing invasion in Anal canal present & Two
slides of Discharge from anal part
preserved
for
histopathological
examination.

Duration: fresh."

5. Dr. M.K. Mathur (PW-4) prepared
injury report (Ex. Ka -5) in his handwriting
and under his signature at the time of
medical examination. In the pathological
examination, no spermatozoa was detected
in the smear by the Senior Consultant
Pathologist,
Malkhan
Singh
District
Hospital-Dr. Saeed Mohammad. On the
basis of pathological report of the victim, a
supplementary report (Ex. Ka-4) was
prepared by Dr. M.K. Mathur. He opined
that no confirmed opinion can be given
about
active
sexual
assault
due
to
spermatozoa not seen in the anal smear.

6. Accused-appellant Satta @ Satya
Prakash
was
also
sent
for
medical
examination and was medically examined
by Doctor Charan Singh on 21.03.2014 at
Malkhan Singh District Hospital.

7. Following injuries were found on
the body of the accused Satta @
Satyaprakash at the time of medical
examination:-

"General condition -conscious
oriented

Alcoholic smell in breathing of
patient found present

Pulse Rate-100 per minute,

B.P. 126/ 80hg

Post polio residual paralysis
present in left lower limb.

Injuries:- 1. Contusion 11 cm X 3
cm on left side mid of scapula on back- red
in colour.
5 All. Satta @ Satya Prakash Vs. State of U.P.
1331

2. Contusion 15 cm X 3 cm on left
side back 4 cm below left scapula-red in
colour.

3. Contusion mid of back 25 cm X
3 cm from left side to right side scapula 5
cm below injury no. 1.

Examination of genital -pubic
hair present.

-penis and scrotum are normally
developed.

-Prepuse easily retractable.

-no external injury over penis,
glana and external meatus

-Two slides prepared from Glana
and external meatus for spermatozoal and
microscopic examination.

Opinion -above said consumed
alcohol, above injuries are simple in
nature and caused by blunt and hard
object,
duration
fresh.
Two
slides
prepared, sealed, labelled and handed
over
for
microscopic
examination,
underwear sealed, labelled and handed
over for microscopic examination to the
concerned constable."

8. After the pathological report,
Doctor
Charan
Singh
prepared
supplementary report. He stated that no
spermatozoa
was
found.
In
the
supplementary report, Dr. Charan Singh
reported that microscopic examination of
underwear was awaited, hence, opinion
could only be given after report of
underwear.
But
injury
report
and
supplementary injury report of the accusedappellant
was
not
proved
by
the
prosecution in the lower court.

9. The investigation of the case was
undertaken by the Sub-Inspector Dori Lal
Yadav on 21.3.2014. He copied the written
complaint of informant in C.D and G.D.
registering the case and also recorded the
statements of Constable Manish Kumar,
informant Rakesh Kumar, mother of
victim-Satyavati. He also tried to record the
statement of victim but due to tender age,
he could not speak and narrate the incident.
He also recorded the statement of the
accused-appellant Satta @ Satya Prakash in
police lock-up of Police Station Lodha. He
copied the injury report of victim and the
accused Satta @ Satya Prakash. On
22.3.2014,
he
visited
the
place
of
occurrence i.e. house of accused-appellantSatta @ Satya Prakash alongwith the
informant and prepared the site plan (Ex.
Ka-3). He also copied supplementary
medical reports of the victim and the
accused-appellant. He also recorded the
statements of Dr. M.K. Mathur and Dr.
Charan
Singh
and
after
completing
investigation submitted the charge-sheet
(Ex. Ka-2). The cognizance of offence
under Section 377 IPC and Section 5/6
POCSO Act was taken by the learned
Additional Sessions Judge, Court No.8,
Aligarh.

10. The court of learned Additional
Sessions Judge, Court No.8, Aligarh had
framed the charges for offence punishable
under Section 377 IPC and Section 5/6
POCSO
Act.
The
accused-appellant
pleaded not guilty and claimed to be tried.

11. In order to prove its case, the
prosecution had examined the informant
Rakesh Kumar, father of the victim as
Rakesh Kumar (PW-1), Satyavati, mother
of the victim as PW-2 as the witnesses of
fact, S.I. Dorilal Yadav as PW-3 to prove
steps taken in the investigation, charge-
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet (Ex. Ka-2) and site plan (Ex. Ka-3),
Dr. M.K. Mathur as PW-4 to prove the
supplementary injury report (Ex.Ka-4) and
injury report of the victim (Ex. Ka-5) and
Constable Manish Kumar as PW-5 to prove
chik report (Ex. Ka-6) and G.D. registering
the case (Ex. Ka-7).

12. Learned lower court recorded the
statement
of
accused-appellant
under
Section 313 Cr.P.C. wherein he had denied
the prosecution case and had stated that
witnesses are falsely deposing against him
and he was falsely implicated. It is stated
by
the
accused-appellant
that
the
informant-Rakesh Kumar had lodged false
case because Bua (aunt) of the informant
alleged to have gone with Kalu (bhanja) of
the accused-appellant in which the accused
was also falsely nominated and police had
filed Final Report in it and due to this
enmity the appellant has been falsely
implicated in this case.

13. Learned court below after appraisal
of the evidence found the testimonies of
Rakesh
Kumar-informant
(PW-1)
and
Satyavati, mother of the victim (PW-2)
trustworthy which gets corroboration from the
medical report prepared by Dr. M.K. Mathur
(PW-4) and materials available on record and
held that the prosecution had established the
guilt of the accused beyond reasonable doubt
for offence punishable under Section 377 IPC
and Section 5/6 POCSO Act, convicted and
sentenced
the
accused-appellant
vide
impugned
judgement
and
order
dated
30.03.2018 as mentioned above.

14. Feeling aggrieved, the accusedappellant has preferred this appeal under
section 374 (2) Cr.P.C.

15. Learned counsel for the appellant
pointed out at the very outset that the
medical evidence in this case does not
corroborate the prosecution case and
accused was solely convicted on the
concocted story and the evidences tendered
by Rakesh Kumar (PW-1) and Satyavati
(PW-2) do not get corroboration from the
prosecution case. It is also contended by
learned counsel for the appellant that there
were inconsistencies in the testimonies of
the witness PW-1 and PW-2. It is further
contended that no spermatozoa was found
in the anal smear taken for pathological
examination. It is further submitted that on
this account, supplementary report (Ex. Ka4) was prepared by Dr M.K. Mathur where
he opined that no confirmed opinion can be
given about active sexual assault due to
spermatozoa not seen in the anal smear. It
is further contended that the injury
sustained
by
the
victim
were
not
established by the evidence on record that
the said injuries were caused due to
sodomy
committed
by
the
accusedappellant. Learned counsel for the appellant
also submitted that if the accused had
committed the act of sodomy, victim would
have sustained injuries in other parts of the
body also but there was no visible injury
found except the injury in the anal canal
which belies the prosecution case. It is
further submitted that PW-1 in his
testimony had admitted that mother of the
accused-appellant Durga Devi was present
in the house when the act of sodomy was
alleged to have been committed. It is
further submitted that on 5.2.2016, PW-1
and PW-2 had submitted their affidavits to
the trial judge wherein they have denied the
prosecution case. It is further submitted that
there is material contradiction in the
statements of PW-1 and PW-2 as Rakesh
Kumar (PW-1) had admitted in his
examination-in-chief that he alongwith his
wife found his son victim in the house of
the accused-appellant and at that time
5 All. Satta @ Satya Prakash Vs. State of U.P.
1333
accused was committing unnatural offence
with the victim after disrobing him while
Satyavati (PW-2) in her cross-examination
stated that she had first gone in search of
her son and when she found her son in the
house of accused-appellant, thereafter, she
called her husband. It is submitted by
learned counsel for the appellant that the
above contradictions in the statement goes
to the root of the case and establishes that
above named two witnesses have not seen
the occurrence and their testimonies are
unreliable and learned lower court has
wrongly believed on their testimonies and
convicted and sentenced the accusedappellant on the basis of conjectures and
surmises. The judgement of learned lower
court is liable to be set aside. It is further
submitted that Rakesh Kumar (PW-1)
stated in examination-in-chief that when he
saw the accused-appellant, he was actually
assaulting his son but contrary to this, in his
cross-examination, he admitted that when
he saw the accused-appellant he was
wearing jeans pant and t-shirt. He had
further
admitted
that
appellant
is
handicapped from his leg and he can only
move with support of his knee and hand. In
above circumstances, the prosecution has
utterly failed to prove its case beyond
reasonable doubt. Sub-Inspector Dori Lal
Yadav (PW-3) had admitted that at the time
of alleged incident there was a party bandi
in the village. It is further submitted that
except father and mother of the victim, no
independent witness was produced by
prosecution to prove the case against the
accused-appellant. It is further submitted
that allegations in the First Information
Report are false and baseless and there is
no evidence on record which could
substantiate
the
charge
against
the
appellant. It is further submitted that trial
court has misread the evidence and without
considering the facts and evidence on
record illegally passed the impugned
judgement and order which is liable to be
set aside and the appeal is liable to the
allowed.

16. Per contra, learned Government
Advocate appearing on behalf of the State
has, vehemently, opposed the contentions
raised by learned counsel for the appellant
and contended that the occurrence had
taken place on 21.3.2014 at about 05:00
PM and the First Information Report was
lodged at Police Station Lodha, District
Aligarh on the same day i.e. 21.3.2014 at
06:30 PM. It is further submitted that the
First Information Report was lodged
promptly which ruled out any sort of
concoction and deliberation for false
implication of the accused. It is further
submitted that the victim was taken to the
Primary Health Centre along with majroobi
chitthi on 21.3.2014 and, thereafter, he was
referred
to
Malkhan
Singh
District
Hospital-Aligarh.
The
victim
was
medically examined promptly at 08:20 PM
on 21.3.2014 at Malkhan Singh District
Hospital by Dr. M.K. Mathur (PW-4) who
found injuries on 'anal spchinter and
another was on anterior part of anal orifice'
and prepared the injury report (Ex. Ka-5).
The doctor had opined that 'sign of some
hard long thing invasion in anal canal was
found present'. It is contended by learned
Government Advocate that the said injuries
were proved beyond reasonable doubt. It is
further contended that the contradictions in
the statements of Rakesh Kumar (PW-1)
and Satyavati (PW-2) are of minor nature
and do not go to the root of the case. It is
further submitted that it is not necessary
that in every case of penetrative sexual
assault, the spermatozoa shall always be
found in the anal smear of the victim. It is
further contended by learned Government
Advocate that Rakesh Kumar (PW-1) and
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
Satyavati (PW-2) had given detailed
description
about
the
time
of
their
proceeding to market and time of their
return from market. They had also given
detailed description that they had visited
market to purchase household articles.
They have also told the distance of Aligarh
market from their village and by which
vehicle they had gone to the market. It is
further submitted that from the perusal of
the record, it was proved beyond doubt that
accused has committed sodomy or in other
words have committed penetrative sexual
assault on victim and learned lower court
has rightly held him guilty and has awarded
appropriate sentence which requires no
interference in this appeal.

17. In this case, the occurrence as
alleged to have taken place at about 5 PM
on 21.3.2014 and the FIR was lodged at
06:30 PM on the same day. The FIR was
lodged by Rakesh Kumar (PW-1) on the
basis of written complaint (Ex. Ka-1).
Rakesh Kumar (PW-1) deposed that he got
ascribed the written report by dictating,
thereafter, he signed on it. No question was
asked regarding concoction of FIR. It was
not challenged by the learned counsel for
the appellant that written complaint was
ascribed on the dictation of Rakesh Kumar
(PW-1). No question was asked regarding
enmity of the complainant with the
accused. No question was asked about time
of
lodging
of
FIR.
In
the
crossexamination,
no question was
asked
regarding concoction or deliberation in the
FIR.

18. Hon'ble Apex Court in Baby Alias
Sebastain & Anr. v. Circle Inspector of
Police, Adimaly (2016) SCC OnLine SC
742 held that prompt lodging of the FIR
precludes the possibility of deliberation to
falsely implicate any person. In this case,
the prompt lodging of FIR has not been
challenged. It was also not stated that FIR
was an outcome of concoction and due
deliberation.

19. In above circumstance, prompt
lodging of FIR is of great significance
which rule out any sort of possibility of
deliberation,
concoction
and
false
implication of the accused. From the
perusal of FIR, it is clear that the accused
was apprehended on the spot while
committing the act of sodomy on the
victim. From the depositions of Rakesh
Kumar (PW-1) and Satyavati (PW-2), it is
proved that Sunil (chachia sasur) also
accompanied them and apprehended the
accused, beaten him, took him to the police
station and lodged FIR which also gets
corroboration from the medical report of
the accused-appellant. From the perusal of
his injury report, it is apparent that the
accused-appellant
sustained
three
contusions but it is unfortunate that the said
medical report is not proved by the
prosecution.

20. Section 53 of Cr.P.C. provides for
examination
of
accused
by
medical
practitioner at the request of police officer
which is as follows:-

"53. Examination of accused by
medical practitioner at the request of
police officer. --(1) When a person is
arrested on a charge of committing an
offence of such a nature and alleged to
have
been
committed
under
such
circumstances that there are reasonable
grounds for believing that an examination
of his person will afford evidence as to the
commission of an offence, it shall be lawful
for a registered medical practitioner,
acting at the request of the police officer
not below the rank of Sub-Inspector, and
5 All. Satta @ Satya Prakash Vs. State of U.P.
1335
for any person acting in good faith in his
aid and under his direction, to make such
an examination of the person arrested as is
reasonably necessary in order to ascertain
the facts which may afford such evidence,
and to use such force as reasonably
necessary for that purpose.

( 2) Whenever the person of a
female is to be examined under this section,
the examination shall be made only by, or
under
the
supervision
of,
a
female
registered medical practitioner.

Explanation-In this Section and
in Sections 53-A and 54,-

(a)" examination" shall include
the examination of blood, blood stains,
semen, swabs in case of sexual offences,
sputum and sweat, hair samples and
fingernail clippings by the use of modern
and scientific techniques including DNA
profiling and such other tests which the
registered
medical
practitioner
thinks
necessary in a particular case;

(b)
"registered
medical
practitioner" means a medical practitioner
who possesses any medical qualification as
defined in clause (h) of Section 2 of the
Indian Medical Council Act, 1956 (102 of
1956) and whose name has been entered in
a State Medical Register."

21. From the perusal of the record it is
proved that Investigating Officer got the
accused medically examined but it is a
sorry state of affair that in the court, the
medical examination report of accusedappellant was not proved.

22. Hon'ble Apex Court in State of
Andhra
Pradesh
v.
Thummala
Anjaneyulu (2010) 14 S.C.C. 621 held that
where First Information Report was lodged
promptly with independent eyewitness
included in the First Information Report
and the spontaneity of the FIR also
supports
eyewitness
account,
the
prosecution case is liable to be relied on.
Hon'ble Apex Court in Jai Prakash Singh
v. State of Bihar (2012) 4 S.C.C. 379 in
para '12' has observed as follows:-

"12.The FIR in a criminal case is
a vital and valuable piece of evidence
though may not be substantive piece of
evidence. The object of insisting upon
prompt lodging of the FIR in respect of the
commission of an offence is to obtain early
information regarding the circumstances in
which the crime was committed, the names
of the actual culprits and the part played by
them as well as the names of the
eyewitnesses present at the scene of
occurrence. If there is a delay in launching
the FIR, it loses the advantage of
spontaneity, danger creeps in of the
introduction
of
coloured
version,
exaggerated account or concocted story as
a
result
of
large
number
of
consultations/deliberations.
Undoubtedly,
the promptness in lodging the FIR is an
assurance
regarding
truth
of
the
informant's version. A promptly lodged FIR
reflects the first hand account of what has
actually
happened,
and
who
was
responsible for the offence in question.
{(Vide Thulia Kali v. State of Tamil Nadu,
(1972) 3 SCC 393, State of Punjab v.
Surja Ram (1995) Supp (3) SCC 419,
Girish Yadav v. State of M.P. (1996) 8
SCC 186, and Takdir Samsuddin Sheikh
v. State of Gujarat (2011) 10 SCC 158. ) }

23. On going through the depositions
of Rakesh Kumar (PW-1) and Satyavati
(PW-2), it appears that nothing came in
their cross-examination which suggest that
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
there was any enmity which prompts them
to falsely implicate the accused-appellant.
It is stated by the accused-appellant in his
statement under Section 313 Cr.P.C. that
Bua of Rakesh had gone with Kalu (Bhanja
of the accused-appellant). The witness
Rakesh Kumar (PW-1) had admitted that
Reshamiya was sister of accused and
Omkar @ Kalu was her son. He had denied
the contention that Omkar had enticed
away the daughter of Chirmauli Das. He
denied
the
contention
that
accusedappellant was falsely implicated due to
enmity.

24. At this juncture, I find it necessary
to discuss the law regarding proof of the
criminal case. Section 3 of the Indian
Evidence
Act-1872
defines
'Proved',
'Disproved' and ' Not Proved' as under:-

"Proved". -A fact is said to be
proved when, after considering the matters
before it, the Court either believes it to
exist, or considers its existence so probable
that a prudent man ought, under the
circumstances of particular case, to act
upon the supposition that it exists.

"Disproved".-A fact is said to be
disproved when, after considering the
matters before it, the Court either believes
that it does not exist, or considers its nonexistence so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the supposition
that it does not exist.

"Not Proved".-A fact is said not
to be proved when it is neither proved nor
disproved.

25. The required standard of proof in
criminal case is beyond reasonable doubt
and in civil cases, it is preponderance of
probabilities. This distinction is basically
made through judicial pronouncement in
Woolmington
v.
Director
of
Public
Prosecutor
(1935
UKHL1),
Rex
v.
Abramovitch (1914) 11 Cr. App. R 45).

26. The case relates to the menace of
sexual crime against children, therefore,
motive plays no role in such crime. Oral
testimony of a witness can be appreciated
by considering his cross-examination, if he
remains uncontroverted in the crossexamination, by weighing his testimony
with the testimonies of the other witnesses,
whether his testimony gets corroboration
from the reliable testimonies of other
witness and by analysing and evaluating
whether his testimony is contradictory or
corroborated by the documentary evidence,
adduced in the case, then his testimony is
reliable.

27. In light of aforesaid, it is
necessary
to
examine
the
effect
of
presumption arising under Section 29
POCSO Act.

Section 29 of the POCSO Act
reads as follows:

"Section 29-Presumption as to
certain offences -Where a person is
prosecuted for committing or abetting or
attempting to commit any offence under
sections 3, 5, 7 and section 9 of the 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."

28. Perusal of the above provision
does indicate that it is for the accused to
prove the contrary that he has not
committed or abetted the commission of an
5 All. Satta @ Satya Prakash Vs. State of U.P.
1337
offence under sections 3, 5, 7, and section 9
of the POCSO Act and, in case, he fails to
do so, presumption would operate against
him leading to his conviction under the
provision of the Act. It cannot be disputed
that no presumption is absolute and every
presumption is rebuttable. It cannot be said
that the presumption under Section 29 of
the POCSO Act is absolute. It will come
into operation only when prosecution is
first able to establish the fact and that
would
form
the
foundation
of
the
presumption under Section 29 of the
POCSO Act to operate. Otherwise, entire
burden would be on the accused to prove
the contrary. Such position of law or
interpretation of presumption under section
29 of the POCSO Act cannot be accepted
as it would clearly violate the constitutional
mandate and no person can be deprived of
liberty, except in accordance with the
procedure established by law.

29. The manner in which such
presumption would operate against the
accused has been analysed and deliberated
upon by the courts, because such a
presumption is also provided for in various
statutes such as Prevention of Corruption
Act- 1988. In the case of Babu versus State
of Kerala, (2010) 9 SCC 189 held in para
27 and para 28 as follows:-

(IV) Burden of Proof and
Doctrine of Innocence.

"27. Every accused is presumed
to be innocent unless the guilt is proved.
The presumption of innocence is a human
right. However, subject to the statutory
exceptions, the said principle forms the
basis of the criminal jurisprudence. For
this purpose, the nature of the offence, its
seriousness and gravity thereof has to be
taken into consideration. The courts must
be on guard to see that merely an the
application of the presumption, the same
may not lead to any injustice or mistaken
conviction. Statutes like the Negotiable
Instrument Act, 1881; The Prevention of
Corruption Act, 1988, and the Terrorist
and Disruptive Activities (Prevention) Act,
1987, provide for presumption of guilt if
the
circumstances
provided
in
those
statutes are found to be fulfilled and shift
the burden of proof of innocence on the
accused. However such a presumption can
also
be
raised
only
when
certain
foundational facts are established by the
prosecution. There may be difficulty in
proving a negative fact.

28. However, in cases where the
statute does not provide for the burden of
proof on the accused, it always lies on the
prosecution. It is only in exceptional
circumstances, such as of those is statutes
as referred to hereinabove, that the burden
of proof is on the accused. The statutory
provision even for a presumption of guilt of
the accused under a particular statute must
meet the tests of reasonableness and liberty
enshrined in Articles 14 and 21 of the
Constitution. "

30. Keeping the aforesaid position of
law in mind, evidence of the prosecution
witnesses in the present case will have to
be examined to find out whether the
prosecution has established a presumption
under Section 29 of the POCSO Act.

31. In this case, the informant and the
father of the victim-Rakesh Kumar (PW-1)
had stated in his examination-in-chief that
on 21.3.2014 at about 12 'o' clock in the
day, he alongwith his wife Smt. Satyavati
(PW-2) went to the Aligarh market to
purchase some household articles leaving
the victim at home alongwith his two other
1338 INDIAN LAW REPORTS ALLAHABAD SERIES
sons and when they returned back from the
market at about 05:30 PM, they did not
found the victim at home. On search being
made by them, they found the victim in the
house
of
accused-appellant.
They
apprehended the accused-appellant and saw
that the accused-appellant was committing
the act of sodomy with the victim by
disrobing him. They raised alarm and other
villagers also got collected there. The
accused-appellant was beaten by the public
and was taken to the police station where
FIR was lodged against him. The written
complaint was ascribed as (Ex. Ka-1). In
the cross-examination, he disclosed the
names of his sons including the victim. He
also disclosed the distance of the market
from his village and stated that he lives
with his wife and three children. He is
mason by profession and he usually leaves
home at 08:30 AM in the morning for work
and returns back at 06:00 PM. He
corroborates that on the day of occurrence
he alongwith his wife went to the market
and mother of the accused-appellant
(Durgadevi) was present in the house of the
accused at the time of occurrence. He
further stated that when he alongwith his
wife returned back, they enquired about the
victim and they were told that the victim
might be playing outside. They gave him
call
at
the
high-pitch
but
nobody
responded. They heard the sound of
weeping of his son from the house of
accused-appellant.
At
that
time
the
accused-appellant was wearing jeans pant,
t-shirt
and
the
accused-appellant
is
handicapped and he creeps on knee. He
further stated that the victim was wearing tshirt and underwear. When they reached
there, they apprehended the accusedappellant. The accused was committing the
act of sodomy with the victim and mother
of the accused-appellant did not came out
of her room. He had clearly stated that he
did not had any enmity with the accusedappellant and had stated that the accused
had fallen on the ground from the side of
his buttock and, as a consequence thereof,
he had sustained injuries. He further
clarified that signatures on the affidavit
(Ex.Kha/2) denying the incident were
obtained fraudulently.

32. From the above evidence on
record, it transpires that there is no
contradiction in the deposition of Rakesh
Kumar (PW-1) and on reading the whole
statement it is clear that signature on the
affidavit was obtained by fraud. They being
illiterate people could hardly read the
contents of affidavit.

33. Insofar as the argument of learned
counsel for the appellant regarding his
statement that he alongwith his wife went
to the house of accused-appellant is
concerned,
the
PW-1
in
his
crossexamination had clarified that first of all his
wife (PW-2) went to the place of
occurrence and when she raised alarm, he
alongwith Sunil and other persons reached
there
and
apprehended
the
accusedappellant. The statement of Rakesh Kumar
(PW-1) is, thus, reliable.

34. So far as the statements of Satyavati
(PW-2) is concerned, she had supported the
prosecution version and stated that on
21.3.2014 at 12 'o' clock in the day, she
alongwith her husband went to the Aligarh
market for purchasing certain household
articles. They left their children at home.
When they returned from the market at about
05:00 pm, they saw the victim missing. They
started search for the victim and found the
victim at the house of the accused-appellant
who was doing wrong act with the victim. She
further deposed that police had got her son
medically examined and in the cross-
5 All. Amrita Nand @ Tribhuvan Arjariya @ Baba Vs. State of U.P. & Anr.
1339
examination she had stated that the house of
the accused-appellant is in front of their house.
She had also stated that while she was going to
the market she asked one Munni Devi to look
after her children. She stated that her mother-inlaw was living separately with them and when
they proceeded for their house, her mother-inlaw also came to the house. She further deposed
that she found blood in the underwear of the
victim and she handed over it to the police. She
also corroborated that signature in the affidavit
denying incident was obtained through deceitful
means by playing fraud.

35. From the perusal of medical report
(Ex.Ka-5) and the supplementary medical
report (Ex. Ka-4) prepared by Dr. M.K. Mathur
(PW-4), it is proved that the victim sustained
injuries as 'abraded mucosa of anal sphincter
and abrasion was present in the anterior part of
anal orifice and two slides were taken for
histopathological
examination'
where
no
spermatozoa was found in the anal smear.

36. The above evidence shows that the
statements
of
PW-1
and
PW-2
gets
corroboration from the medical report.

37. It is pertinent to note here that the
accused-appellant was also medically examined
wherein 'alcoholic smell was found present in
his breath' and he also sustained the injuries
which are already mentioned above in the body
of judgment. It is a matter of strange and sheer
lapse on the part of the official concerned that
the injuries of the accused-appellant have not
been proved.

38. The statement of Satyavati (PW-2) is
natural, without material contradiction and
inspires
confidence.
Her
statement
gets
corroboration from the statement of Rakesh
Kumar (PW-1) and medical reports. S.I. Dori
Lal Yadav (PW-3) proved the charge-sheet
(Ex.Ka-2), site plan (Ex. Ka-3) and also the
steps taken in the investigation whereas
Constable Manish Kumar (PW-5) has proved
the chik report (Ex. Ka-6) and G.D. (Ex. Ka-7)
which are formal in nature.

39. It is also pertinent to note here that the
accused-appellant had tried to manipulate and
temper with the evidence as the signatures of
PW-1 and PW-2 were fraudulently obtained in
the affidavit denying the incident.

40. From the evidence available on record, it is
proved beyond reasonable doubt that the accusedappellant Satta @ Satya Prakash had committed
grave offence punishable under Section 377 IPC and
Section 5/6 POCSO Act and the learned lower court
had rightly convicted and sentenced the accusedappellant as mentioned above.

41. In above circumstance, I do not find
any merit in the appeal.

42. The judgement and order dated
30.03.2018 passed by the court of Additional
Sessions Judge, Court No.08, Aligarh is hereby
affirmed.

43. The appeal is dismissed, accordingly.

44. Let the Lower Court Record be
returned to the court concerned forthwith.
----------
(2023) 5 ILRA 1339
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 3169 of 2020

Amrita Nand @ Tribhuvan Arjariya @ Baba
 ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties