After he dies, HC sets aside 2004 trial court verdict convicting man

The HC held that the trial judge had “fallen into grave error” as neither the victim girl nor her mother had furnished the dates of the alleged incidents. It said the trial court committed a “gross precarious flaw” and should have properly examined the victim’s deposition as her statements were indicative of her “mentally challenged state”.

A single-judge bench of Justice Bharati H Dangre passed a verdict last month, a copy of which was made available on October 5.

The appellant was convicted by sessions court in Mumbai on March 5, 2004, after which he had filed an appeal against conviction in the High Court. Pending appeal, he was released on bail till he passed away on January 25, this year. In August, this year, his widow was allowed to pursue the appeal, which was argued by advocate Ajay H Lad.

As per prosecution, the girl reported to the police that she used to stay with her family and on on November 16, 1988, she went to the appellant’s house whom she called as “caretaker”, to fill water.

She alleged that he sexually assaulted her and told her not to speak about the incident. However, the next day, as the girl suffered some health issues, she disclosed the incident to her father and was admitted to hospital.

The bench noted that while the trial judge recorded that the girl was mentally challenged, it was imperative on him to ascertain whether she was capable of understanding questions put to her and was a competent witness.

In the cross-examination, the victim admitted that she could not recollect the day, month and year when the incident occurred and her mother admitted that she was mentally challenged since childhood and was under medical treatment.

The bench noted that it was the duty of the trial judge to adopt procedure to analyse potential victims to depose as a competent witness. Without doing so, he concluded with “grave error” that the case for rape was not made out, but the minor charge under section 354 of IPC is made out, the bench noted.

Justice Dangre, setting aside the 2004 verdict, held that the premise on which the trial judge derived conclusion was “weak” as prosecution’s case did not have credence, the impugned judgement, therefore, suffered from “grave illegality” and “cannot be sustained”. However, the bench said that Rs 10, 000 compensation given to the victim shall be continued to be retained by her.