Failure To Examine Child Victim In Court Vitiates Conviction For Sexual Assault, Amounts To Denial Of Fair Trial: Bombay High Court - 2025-08-17

Bombay HC Overturns Life Sentence in Child Rape Case, Cites Failure to Examine Victim as Denial of Fair Trial

Nashik: The Bombay High Court has overturned the conviction and life sentence of a man for the rape 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 and left a "serious doubt" about the perpetrator's identity.

In a judgment delivered by Justice Suman Shyam, the court acquitted Deepak Babasaheb Gaikwad of charges under Sections 376(2)(f) (rape of a child) and 377 (unnatural offenses) of the Indian Penal Code (IPC). However, the court upheld his conviction for kidnapping under Section 363 of the IPC. Since the appellant has already served over 10 years in prison, exceeding the maximum sentence for kidnapping, the court ordered his immediate release.

Background of the Case

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

Four days later, a police search team, accompanied by the child's father, found her at Mumbra Railway Station. Upon being reunited with her mother, the child complained of pain and was found to have injuries and swelling on her private parts. A medical examination confirmed she had been subjected to a brutal sexual assault. The child allegedly told her mother that her uncle, the appellant, was the perpetrator.

Following an investigation, the Additional Sessions Judge, Nashik, convicted the appellant based on circumstantial evidence, primarily the "last seen together" theory, and sentenced him to life imprisonment.

Arguments Before the High Court

The appellant’s counsel argued that the conviction was unsustainable as it rested solely on the weak evidence of "last seen together." It was contended that the four-day gap between the victim being taken and found at a public place like a railway station left a significant window for another person to have committed the crime.

The most critical argument was the prosecution's failure to produce the child victim as a witness. The defense argued that since the victim was able to narrate the incident to her mother, she was the "best evidence" in the case. Withholding her from the witness box, without explanation, warranted an adverse inference that her testimony would not have supported the prosecution's narrative. This, the counsel submitted, violated the appellant's right to a fair trial under Article 21 of the Constitution.

The state, while defending the trial court's judgment, fairly conceded that there was no explanation on record for not examining the child victim during the trial.

Court's Reasoning: "Suspicion, Howsoever Strong, Cannot Take the Place of Proof"

The High Court meticulously analyzed the evidence and legal principles surrounding circumstantial evidence and the right to a fair trial. Justice Suman Shyam agreed with the trial court that the kidnapping and the sexual assault on the minor were proven beyond doubt. However, the pivotal question was whether the prosecution had conclusively linked the appellant to the sexual assault.

On 'Last Seen Together' and Section 106 of the Evidence Act

The court observed that the "last seen together" theory is a weak piece of evidence and cannot be the sole basis for conviction, especially when there is a substantial time gap.

> "The time gap since the Accused was last seen in the company of the victim and when she was recovered from Mumbra railway station, 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 court also rejected the prosecution's reliance on Section 106 of the Evidence Act, which places the burden on the accused to explain facts especially within his knowledge. Citing Supreme Court precedents, the judgment clarified:

> "Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused... Unless there is evidence available on record to connect the Accused/Appellant with the commission of offence... his conviction under those sections would not be sustainable in the eyes of law."

On the Failure to Examine the Victim

The court found the non-examination of the victim to be a fatal flaw in the prosecution's case, amounting to a denial of a fair trial.

> "We are in agreement with the submission of the learned Legal-aid counsel... that in the facts of the case, the testimony of the victim girl would have been the best evidence. Therefore, 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..."

The judgment emphasized that the court has an overriding duty to unearth the truth and cannot be a "spectator." The failure to call the child victim or the investigating officer who recorded her statement was a serious lapse that denied the accused an opportunity to prove his innocence.

Final Verdict

Concluding that the evidence was insufficient to prove the charges of sexual assault against the appellant beyond a reasonable doubt, the High Court set aside the conviction under Sections 376(2)(f) and 377 of the IPC. The conviction under Section 363 for kidnapping was upheld.

As the appellant had already served more than the maximum sentence for kidnapping, the court directed his immediate release.