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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
G.A. Sanap, J.
Ajijkha (khan) Bismillakha (khan) – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 122 of 20 22
Decided On : 30-09-2022
rape - mentally retarded girl - Indian Penal Code Sections 376(2)(j)(n), 506 - Medical evidence did not corroborate the victim's testimony - Lack of evidence on the identification of the accused - Lack of evidence on previous incidents - Appeal allowed, appellant acquitted
Fact of the Case:
The appellant was convicted for offences under Sections 376(2)(j)(n) and 506 of the Indian Penal Code for an incident involving a mentally retarded girl. The victim alleged that the appellant had assaulted her on multiple occasions, but the medical evidence did not fully support her claims. The appellant appealed the conviction.
Finding of the Court:
The court found that the medical evidence did not fully corroborate the victim's testimony, and there was a lack of evidence on the identification of the accused and previous incidents. The court concluded that the evidence was not sufficient to prove the guilt of the appellant, and the conviction and sentence were set aside. The appellant was acquitted of all charges.
Issues: The issues included the reliability of the victim's testimony, the corroboration of her claims by medical evidence, the lack of evidence on the identification of the accused, and the lack of evidence on previous incidents.
Ratio Decidendi: The court's decision was based on the lack of sufficient evidence to prove the guilt of the appellant, including the lack of corroboration by medical evidence and the lack of evidence on the identification of the accused and previous incidents.
Final Decision: The appeal was allowed, the judgment and conviction were set aside, and the appellant was acquitted of all charges.
JUDGMENT
1. In this appeal, challenge is to the judgment and order dated 19.01.2022, passed by the learned Additional Sessions Judge, Amravati in Sessions Case No. 01/2021, whereby the learned Judge convicted the appellant for the offences punishable under Sections 376(2)(j)(n) and 506 of the Indian Penal Code. The appellant is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo further rigorous imprisonment for six months for the offence punishable under Section 376(2)(j)(n) of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months for the offence punishable under Section 506 of the Indian Penal Code.
2. Brief facts of the prosecution case are as follows :
The victim (PW3) is a mentally retarded girl. Both, the appellant and the victim-girl, are resident of Amravati. Father of the victim-girl is plying auto rikshaw. Mother of the victim is working in a cloth shop at village Morgaon. At the relevant time, the victim-girl was studying in Mand Buddhi and Sharirik Apang Vidyalaya, Harshraj Colony, Amravati. The incident occurred on 28.09.2020 at 2.00 p.m. at Vilas Nagar Galli No.5, Amravati. The appellant is doing work of 'coolie'. It is the case of the prosecution that on 28.09.2020, at about 2.00 p.m. the appellant caught hold the victim and took her in a cattle shed of Kishor Patel. The appellant pressed her breasts and inserted his finger in her private part. The victim shouted for help. On hearing shouts, Kishor Patel went there and questioned the appellant. The appellant replied that he had come to the spot to wash his hands and the victim came there to collect cow-dung. After this, the appellant left the place of the incident. The victim, in the evening, narrated the incident to her mother. It is further the case of the prosecution that prior to this incident, on 4 - 5 occasions the appellant had committed the same act with the victim on 08.08.2020, 10.08.2020, 24.09.2020 and 27.09.2020. It is the case of the prosecution that the victim girl did not disclose the earlier incidents to anybody because of threat extended by the appellant. The appellant threatened to defame her and make a complaint to her parents, which would result into her beating at the hands of her parents, if she had disclosed about the incident to anybody. It is stated that because of this threat, the victim did not disclose the earlier incidents to anybody. On 30.09.2020 at about 2.00 p.m., brother of the victim found the appellant and took him to police station. The victim was taken to the police station on 30.09.2020. The victim lodged report of the incident. On the basis of the report, crime bearing No. 856/2020 for the above offences came to be registered against the appellant.
3. PI Rekha Londhe (PW4), conducted the investigation. She arrested the appellant. During the course of investigation, the victim was sent for medical examination. The appellant was also sent for medical examination. The Investigating Officer collected the documents of mental illness of the victim. She recorded the statements of the witnesses. The samples collected during the course of investigation were sent to the Chemical Analyser. On receipt of C.A. report and on completion of investigation, charge-sheet was filed against the appellant.
4. Learned Additional Sessions Judge, on committal of the case by the learned Magistrate, framed Charge (Exh.2) against the appellant. The appellant pleaded not guilty. In order to bring home the guilt of the appellant, the prosecution examined in all six witnesses. The learned Additional Sessions Judge found evidence of the prosecution witnesses cogent and reliable and therefore, based on the said evidence, convicted and sentenced the appellant as above. The appellant being aggrieved by the said judgment and order has co
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The presumption under the POCSO Act is rebuttable and requires foundational facts to be established beyond reasonable doubt for conviction.
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The victim's credible testimony can sustain a conviction in sexual assault cases even without corroborative medical evidence, acknowledging the victim's disability and the nature of consent.
The absence of physical injuries does not negate a credible victim's testimony in rape cases, which can be sufficient for conviction.
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