Wednesday, September 28, 2022

Bombay High Court sets aside conviction of man accused of raping a child

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The Bombay High Court on Monday quashed and set aside an order convicting a 28-year-old man of raping a minor child. The Court noted the inconsistencies in the victim’s statement to the police, and said it would be highly unsafe to convict the appellant solely on the basis of the victim’s testimony.

The division bench of Justice S.S. Shinde and Justice M.S. Karnik was hearing a criminal appeal filed by Ali Muhammad Shaikh, who was convicted under Sections 363, 366A, 326, 376 read with Sections 5 and 6 of the Protection of Children From Sexual Offences Act by a Special POCSO Judge at Dindoshi and sentenced to life imprisonment.

The prosecution said on August 20, 2014, the victim aged 6 to 7 years, her mother, her 4-year-old brother and grandmother were sleeping on the platform near Kala Hanuman Mandir, Thakkar dairy, MG Road, Kandivali (West), Mumbai. The victim and her mother were awake till 2:30 am. Thereafter, they fell asleep. At around 6 am, when the victim’s mother woke up, she realised the victim was not in her bed. She went in search of her daughter and found her crying in a nearby lane. The victim’s grandmother was by her side. She noticed a broom inside the private part of the victim. There was blood around the person of the victim. The passersby gathered on hearing her cry. The first informant took the child to Dr. Babasaheb Ambedkar Hospital for medical treatment.

According to the victim’s mother, the first informant, one Anand was eyeing the informant and her daughter with
some ill intention. She suspected him to be the perpetrator. The police searched for the person in the light of information disclosed by the informant and they nabbed the appellant – Ali Mohammed Shaikh. The informant told the police that he is the same person who was eyeing them with ill intention and that he was the one who took the victim to a lonely place and sexually abused her.

The police collected the call data records of the mobile phone which revealed that the accused was in that area at the relevant time. The appellant was then arrested. The clothes of victim and accused were seized and sent for analysis. The charge-sheet was submitted by Investigating Officer Anil Desai of Kandivali Police Station.

The prosecution examined as many as 11 witnesses and relied upon as many as 30 documents in support of the prosecution case. The Special Judge convicted the appellant as hereinbefore mentioned.

Counsel for the appellant submitted that the Special Judge committed an error in convicting the appellant as possibility of false implication cannot be ruled out. Inviting attention to the medical evidence on record, other evidences and deposition of the prosecution witnesses, the counsel submitted that it would be unsafe to convict the accused as the prosecution has failed to prove the involvement of the accused beyond all reasonable doubt.

The evidence reveals that the victim identified the accused for the first time in the Court. The victim was 6 to 7 years of age on the date of the incident. No test identification parade was held. Learned Counsel for the appellant relied upon the decision of the Supreme Court in the case of Raja Vs. State by the Inspector of Police to contend that mere dock identification is no identification in the eye of the law unless corroborated by previous Test Identification Parade before the Magistrate. According to him, failure to hold the test identification parade is fatal to the prosecution case.

“In our opinion, in the present case, failure to hold the test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification by P.W.5- victim is undoubtedly a matter for the Courts of fact. However, the Court has to be satisfied that the evidence can be safely relied upon even in the absence of test identification parade. Test identification parades do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. It is trite that substantive evidence is the evidence of identification in Court. We find from the evidence of P.W.5 that she deposed ‘accused is a friend of her father’. The accused being known to the victim, probably, could be the reason for not holding the test identification parade.”

On the date of the incident, the victim was 6 to 7 years of age. The victim’s mother, the first informant stated that she knew the accused as ‘Anand’. She suspected him to be the perpetrator as he was trying to talk to her and followed her. It is during the course of her cross examination that she identified the accused as ‘Ali’.

Referring to the inconsistencies in the victim’s statement regarding identity of the perpetrator, the bench noted-

“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 bench said, “Considering the material inconsistencies brought on record by the defence during the cross-examination of PW 5, regarding the identity of the perpetrator, it will be unsafe to rely on her sole testimony as the possibility of tutoring cannot be ruled out.”

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The Court said that the medical evidence in the case though firmly establishes the brutality of the assault, but the forensic reports do not support the prosecution case that appellant is the perpetrator.

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