Bombay HC: Sexual Assault Conviction Under S.376/377 IPC Set Aside For Failure To Examine Child Victim; 'Last Seen' Theory Weak Evidence - 2025-08-19

Bombay High Court Sets Aside Life Sentence for Sexual Assault, Cites Failure to Examine 3-Year-Old Victim

Mumbai: The Bombay High Court has overturned the conviction and life sentence of a man for the sexual assault of his three-year-old niece, ruling that the prosecution's failure to examine the child victim in court amounted to a denial of a fair trial. The division bench of Justices Suman Shyam and Shyam C. Chandak held that suspicion, "howsoever strong, cannot take the place of proof," and acquitted the appellant of charges under Sections 376(2)(f) and 377 of the Indian Penal Code (IPC).

However, the Court upheld his conviction for kidnapping under Section 363 of the IPC. As the appellant had already served over 10 years in prison—exceeding the maximum sentence for kidnapping—the Court ordered his immediate release.

Case Background

The case dates back to October 3, 2013, when the appellant, Deepak Babasaheb Gaikwad, allegedly took his three-year-old niece from her mother's custody on the pretext of buying her new clothes. When the child did not return, her father filed a missing person report, which was later converted into a kidnapping case.

Four days later, a police team found the child at Mumbra Railway Station. Her mother noticed injuries on her private parts, and a medical examination confirmed she had been sexually assaulted. The mother testified that the child had narrated the assault to her, implicating the appellant. Based on this and the "last seen together" evidence, the Nashik Sessions Court convicted Gaikwad in 2015 and sentenced him to life imprisonment.

Key Arguments in the High Court

Appellant's Submissions: Appearing for the appellant, legal aid counsel Mr. Sandeep Karnik argued that the conviction was unsustainable as it was based solely on the "last seen together" theory, which is considered weak evidence. He emphasized that the prosecution's most crucial witness—the victim herself—was never examined in court, despite being able to narrate the incident to her mother. This, he contended, deprived the appellant of his right to a fair trial and to cross-examine his accuser. Mr. Karnik argued that an adverse inference should be drawn against the prosecution for withholding the best evidence.

State's Submissions: The Additional Public Prosecutor, Ms. G. P. Mulekar, defended the trial court's verdict, arguing that the appellant had taken the child and failed to provide any plausible explanation for her injuries, thus shifting the burden of proof onto him under Section 106 of the Evidence Act. However, she conceded that there was no explanation on record for why the child victim was not presented as a witness.

High Court's Analysis: Fair Trial and Circumstantial Evidence

The High Court meticulously analyzed the principles of circumstantial evidence and the right to a fair trial. The bench found that while the prosecution established that the appellant had kidnapped the child, it failed to connect him directly to the sexual assault.

On the 'Last Seen Together' Theory

The Court observed a substantial time gap of nearly four days between when the appellant was last seen with the victim and her recovery at a public place like Mumbra Railway Station.

"Railway station, it must be noted, is a public place frequented by number of travellers/ visitors each day... the time gap... is nearly four days which is a substantial gap... it is not possible for the Court to presume that there was no scope of the victim girl to be sexually abused by any other person saved and except the Appellant."

The bench reiterated that the "last seen together" circumstance is a weak piece of evidence and cannot be the sole basis for conviction, especially when there is a significant and unexplained time gap.

On the Failure to Examine the Victim

The Court deemed the failure to examine the child victim a fatal flaw in the prosecution's case. It noted that since the child could narrate the incident to her mother, her testimony was the "best evidence" available.

"Failure on the part of the prosecution to put her in the witness box without any reasonable explanation would afford a reasonable ground for this Court to draw adverse presumption against the prosecution on the basis that had the victim been examined as a witness, she would not have supported the prosecution case."

The bench further underscored that denying the accused an opportunity to cross-examine the primary witness constituted a violation of his fundamental right to a fair trial under Article 21 of the Constitution.

"The failure on the part of the prosecution to examine the victim or the PSI [who recorded her statement], without any just explanation, in our considered opinion would amount to denial of an opportunity to the accused to prove his innocence and therefore, in the facts of the case, would constitute denial of fair trial to the accused."

Final Verdict and Implications

In its final order, the High Court concluded that the evidence was insufficient to prove the charges of sexual assault beyond a reasonable doubt.

"We find that the evidence brought on record by the prosecution is insufficient to establish the charge under Sections 376(2)(f) and 377 of the IPC brought against the Accused."

While acquitting Deepak Gaikwad of the sexual assault charges, the Court affirmed his conviction for kidnapping under Section 363 IPC. Given that he had already served a sentence longer than the maximum prescribed for this offence, his immediate release was ordered. The judgment serves as a critical reminder of the prosecution's duty to present its best evidence and uphold the accused's right to a fair trial, even in the most heinous of cases.