'Unsafe to convict the appellant solely on the basis of the testimony of victim': Man convicted for alleged rape for a minor acquitted

'Unsafe to convict the appellant solely on the basis of the testimony of victim': Man convicted for alleged rape for a minor acquitted

Ali Mohammed Shaikh Vs State of Maharashtra and Anr

Bombay HC

14/12/2020

CRIMINAL APPEAL NO. 1006 OF 2019

About/from the judgment:

The High Court while hearing a criminal appeal acquitted the appellant who was convicted by the special court for raping a 7-year-old under the POSCO act saying "gravity of offence can not by itself overweight as far as legal proof is concerned."

Facts

The victim was sleeping with her mother on the platform at the night but in the morning the victim was not found by the mother. The mother went to look for the victim when she found her crying in another lane. The victim had a broom inside her private part and she was bleeding so she was taken to the hospital. The victim's mother filed the FIR and suspected a man who was eyeing them with ill intention and alleged that the said man had raped her daughter. The appellant was arrested as the suspect and the victim's mother confirmed him to be the perpetrator upon which charges under IPC and POSCO act were filed against him for raping and sexually assaulting the victim who was a minor of 6 to 7 year old at the time of the offense. Relying upon the prosecution's 11 witnesses and other evidence the special judge convicted the appellant and sentenced him to life imprisonment. Aggrieved by the judgment the accused filed an appeal in the Bombay high court.

Appellant's Contentions

The counsel for the appellant submitted that the possibility of false implication cannot be ruled out and the prosecution has failed to prove his client's implication in the offense beyond a reasonable doubt. The counsel brought the court's attention to the medical evidence and deposition of the witnesses and pleaded that the trial court has erred in convicting the appellant and he shall be acquitted.

Respondent's Submissions

The learned APP appearing for the respondent side contended that the accused was responsible for the alleged offense and submitted that the trial court hasn't erred in his conviction. The respondent side further added that they have proved the appellant's guilt beyond reasonable doubt and pleaded that the court dismisses the appeal without interfering with the trial court's judgment.

Court's Decision

The Court observed that the victim has gone through a barbaric ordeal but remarked that the gravity of offense cannot overweigh legal proof. Upon evaluation of the victim's statements the court said "The testimony of the victim so far as the identity of the accused is concerned, appears to be inconsistent. When the evidence of the P.W.5 was recorded in the Chamber of the learned Judge, the appellant was shown to her and she identified him in the Court saying that he is a friend of her father. The victim then deposed that she did not see the person prior to the date of offence committed on her, but then goes on to say that he used to meet her father and that she knew him well. It is in her evidence that she had an occasion to see the appellant again since the day she was assaulted. Considering these inconsistencies in her evidence, the version of the victim has to be scrutinized carefully". The court further came to notice that the victim might have given the statement under the influence of her mother and considering other inconsistencies the court held that the statement required more corroboration and the appellant cannot be convicted on the sole basis of the victim's testimony.

The court further evaluated the forensic evidence and found that the DNA samples from the victim's cloth did not match with those of the appellant. Thus finding no corroborative evidence the court said "Being a child witness, her evidence had to be scrutinized with great care and caution. No doubt, if the same inspires confidence and otherwise there is no possibility of tutoring, the same can form the basis for conviction if found truthful and reliable. We are conscious that a high degree of sensitivity is expected while dealing with the evidence of a child witness who has been abused in such a barbaric manner. We however find that the evidence of P.W.5 in the instant case creates doubt regarding the identity of the accused. In these circumstances, it would be highly unsafe to convict the appellant solely on the basis of the testimony of the victim." Thus setting aside the special court's judgment the court quashed the conviction of the appellant and allowed the appeal.

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