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Bombay High Court dismisses appeal challenging conviction in sexual assault case

The Court held that no fault can be found in the impugned judgment and order of conviction and sentence.

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The Bombay High Court on Friday upheld the judgment of a Sessions Court convicting the Appellant Gourav Narendra Singh in sexual assault case.

A single-judge bench of Justice Revati Mohite Dere passed this order while hearing a criminal appeal filed by the appellant challenging the judgement passed by Additional Sessions Judge S.Q. Pathan on March 29 2017.

The Court held that no fault can be found in the impugned judgment and order of conviction and sentence. Therefore, the Court dismissed the appeal.

The appellant was convicted for the offence punishable under Section 376 of the Indian Penal Code, to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.2,00,000/. He was also convicted for the offence punishable under Section 506 of IPC to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.50,000/-, in default of payment of fine, to suffer further rigorous imprisonment for 3 months.

The appellant is the cousin brother of the grandfather of the prosecutrix, who was aged 13 years (a minor) at the time of the alleged incident. The prosecutrix was residing with her maternal grandparents and maternal uncle and aunt at the relevant time. 

According to the prosecutrix, in February 2012, the appellant took the key from the neighbour named Gulabi Giri, opened the house and was sitting on the mezzanine floor of the house, watching television. 

It is the prosecution case, that when the prosecutrix returned home from school, the appellant asked her for some biscuits and when the prosecutrix brought the biscuits, the appellant pulled her towards him and sexually assaulted her.  The appellant also allegedly took nude photographs of the prosecutrix and threatened to upload the same on the internet in case if she disclosed the incident to anyone. 

The appellant, on the basis of the  photographs, during the period February 2012 to September 2012, sexually assaulted the prosecutrix on a number of occasions, by threatening to defame her and her family, by uploading the photographs on the internet. 

The Counsel for the appellant submitted that the prosecution had not proved its case against the appellant beyond reasonable doubt. He submitted that the appellant has been falsely implicated at the instance of the prosecutor’s grandfather, on account of a property dispute between the prosecutor’s grandfather and the appellant’s father and grandfather. 

He further submitted that there is a delay of 13 months in lodging the FIR, in as much as, the alleged incidents are stated to have taken place between February 2012 to September 2012, whereas, the FIR was lodged on March 9, 2013. 

The Counsel for the applicant stated that the medical evidence also does not support the prosecution case of sexual assault on the prosecutrix. He further stated that the prosecutrix has also failed to prove that the prosecutrix was a minor at the relevant time. 

The Counsel also stated that the prosecution has not examined Gulabi Giri, the neighbour, with whom the house key was kept, thus, belying the prosecution case that the appellant had taken the keys from Gulabi Giri and as such, there is no corroboration to the same. 

Assistant Public Prosecutor, S.V. Gavand stated that the prosecution had proved the date of birth of the prosecutrix i.e November 13, 1990, which shows that she was a minor at the time of the alleged incident. A.P.P relied on the Birth Certificate issued by the Health Department of BMC under Sections 12 and 17 of the Registration of Births and Deaths Act. 

He further stated that in fact, the appellant has not disputed the prosecutor’s date of birth. According to the A.P.P, the defence of the appellant that there was a property dispute, has not been established by the appellant and nor has the Section 29 presumption rebutted by the appellant. He submitted that not a single document has been produced by the appellant to show that there was any civil dispute between the parties. 

The Court said the legal position that emerges is that the statement of the prosecutrix, if found to be cogent, trustworthy, natural and reliable, requires no corroboration and that the Court may convict an accused on the sole testimony of the prosecutrix. 

The evidence is also duly corroborated by the evidence of Dr. Rachana Shah. She has stated that on March 02, 2013 at 7:30 p.m, the prosecutrix was brought by Sunita Padwa, Woman Police Naik of Santacruz Police Station. She has stated that the prosecutrix gave history of sexual assault/rape multiple times between February 2012 to September 2012 by her cousin brother, at her grandfather’s house. 

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“Although Counsel for the appellant submitted that the appellant has been falsely implicated in the said case because of a property dispute and pending civil cases, not a single document has been placed on record to show that there was any such dispute between the appellant’s family and the prosecutor’s family. The burden cast upon the appellant under Section 29 of the Protection of Children from Sexual Offences Act has thus not been discharged by the appellant. If at all there was a property dispute between the parties and cases instituted against each other as alleged by the appellant, the appellant could have certainly placed the said documents/case papers on record or could have even examined himself or a defence witness in support thereof,” the order reads. 

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