Rape A Condemnable Offence But Conviction Cannot Be On Ground Of Sympathy With Victim: Bombay High Court

The Nagpur bench of the Bombay High Court recently while acquitting a man convicted for raping a mentally and physically disabled minor girl, said courts cannot convict a person merely on the basis of sympathy and moral considerations.

Single-judge Justice Govind Sanap noted various lapses on part of the prosecution to prove the fact that the appellant convict was the one, who raped the minor victim and thus acquitted him.

"In the facts and circumstances, I conclude that prosecution has miserably failed to establish the identification of the accused, being the perpetrator of the crime. The evidence on the point of the identification of accused is not of sterling quality. It is not out of place to mention that a crime of this kind needs to be condemned. It is a brutal and deplorable crime. In such a crime, the sympathy of the Court is bound to be with the victim. However, the conviction cannot be based on sympathy and moral consideration. However, the conviction cannot be based on sympathy," Justice Sanap said in an order passed on July 20.

As per the prosecution case, the victim, a physically and mentally disabled minor girl, was alone in her house on September 9, 2018 as her mother was out for field work and her grandmother had been to a neighbour's house. When the grandmother returned home, she saw that the clothes of the victim were lying on the ground and she was weeping and the accused (present applicant), who was a relative of a woman in the village, was present in the house along with the victim. He however, managed to escape. Subsequently, a complaint was lodged by the victim's mother under charges of rape and other relevant provisions of the Protection Of Children from Sexual Offences (POCSO) Act.

The trial court convicted the appellant under charges of POCSO and rape and sentenced him to 15-years rigorous imprisonment on October 16, 2020.

However, the HC bench of Justice Sanap, noted lacuna in the investigation as coming forth from the statements of the investigating officer, who did not conduct a Test Identification Parade (TIP) despite knowing the fact that the appellant was not at all acquainted with the victim of her family.

"In my view, the evidence of the investigating officer clearly suggests that there was a complete lack of seriousness on her part. In such a serious crime, the TIP in such a fact situation was a rudimentary step while conducting the investigation. The investigating officer has to conduct test identification of the accused as the accused is not known to the witnesses prior to the incident. Such conduct in my view is nothing short of dereliction of duty on the part of a responsible police officer. The approach of the investigating officer cannot be appreciated. Rather, it deserves to be condemned," the judge said.

The investigating officer due to her negligence and careless approach, has left such a drawback and lacuna in the case of the prosecution, the judge underscored.

Therefore, the appellant, the court said is entitled to 'benefit of doubt' as the Chemical Analyser (CA) Report failed to link the appellant to the accused since the report did not match with his sample of semen and the one found on the clothes of the victim.

The judge, however, noted from the testimony of the medical expert, who opined that there was a possibility of sexual assault. The bench held that the medical expert's evidence fully corroborated the evidence of the victim's mother on the point of penetrative sexual assault on the victim.

"However, the identification of the perpetrator of the crime has not been established," the bench pointed out while acquitting the accused from the case.

Appearance:

Advocate AC Jaltare appeared for the Appellant.

Assistant Public Prosecutor RV Sharma represented the State.

Case Title: Sanjay Gowardhan Wakde vs State of Maharashtra (Criminal Appeal 524 of 2020)

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