Bombay High Court Reduces Sentence Of Former Cop Convicted For Sexually Assaulting Teen Boy, Cites Good Behaviour In Jail

While dealing with an appeal against the conviction, Justice Sarang V. Kotwal observed that the appellant, as a convict and as an undertrial prisoner prior to that, had already been in jail for longer than the minimum sentence under section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) at the time of the offence.

"the applicant is in custody for more than eight years. He was an under-trial prisoner for a considerable period…..He has helped his co-prisoners and was granted various certificates for his good behaviour……At the time of commission of offence, the minimum punishment provided under Section 4 of the POCSO Act was seven years. He has undergone one year more than the minimum sentence. His conduct in the jail is satisfactory", the court observed.

The court however, upheld the conviction due to 'clinching' DNA evidence as well as medical evidence.

The appellant was convicted in 2018 under sections 377 (unnatural offences), and 506 (criminal intimidation) of the IPC and under section 4 of the POCSO Act. He was sentenced to rigorous imprisonment for 10 years with fine. He had been a constable who was suspended from a service much before the incident of this case.

It was the prosecution's case that the 17-year-old victim boy, after a quarrel with his brother, left his house after midnight for his father's house at Wadala. On the way, the appellant offered him a lift and then took him to a secluded spot on the terrace of a building and committed the offence. He also gave the boy his phone number and dropped him near his father's house. The victim informed his father and a report came to be registered at the Sion police station.

The medical examiner reported that the injuries on the victim's anal region occurred within 24 hours of the medical examination and were consistent with the history narrated by the victim.

The DNA report stated that the DNA of the semen collected from the victim's clothes and the DNA of blood sample of the appellant are identical. Therefore, it was conclusively proved that semen on the underwear of the victim was that of the appellant.

The appellant denied the offence but admitted the rest of the victim's narration. He claimed that the victim invited him for his birthday and the appellant denied it due to busy schedule. Therefore, the appellant gave him his phone number. He claimed that he was the president of a political party in Wadala constituency and a rival member who wanted to contest 2014 elections from the same seat fabricated false against him.

Advocate Ashish Satpute for the appellant submitted that clothes seized from the victim were sent for examination one month later which gave scope to police to tamper with them. He contended that there is supposed to be a specific procedure and kit for collection of blood sample for DNA testing and the prosecution has not proved that this was followed. Hence, the DNA report could not be used against the accused even if it was supporting the prosecution's case.

The court observed that the DNA report is one of the most incriminating pieces of evidence and cannot be overlooked. The defence does not explain how the appellant's semen stains appeared on the victim's underwear. The court did not accept the appellant's defence that his semen was collected in the police station as he did not make any grievance regarding this any time before or during the trial.

The defence did not disputed identification forms necessary to be filled at the time of drawing blood samples for DNA test that the prosecution produced.

Therefore, the court held that the prosecution sufficiently proved that the blood samples of the victim and the appellant were properly sent for DNA test resulting in the DNA report which is clinching incriminating material.

The court stated that the evidence of the victim is sufficiently corroborated by the medical evidence. Hence, the prosecution has proved its case beyond reasonable doubt, the court held.

However, the court observed that the appellant has been in custody for more than 8 years and his conduct in the jail has been satisfactory. Therefore, it reduced the substantive sentence to the period which he has already undergone imprisonment.

Case no. – Criminal Appeal No. 1301 of 2018

Case title – Vilas Shantaram Kaldhone v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 474