Citing lack of proper procedure, Bombay HC sets aside death penalty of man who ‘raped’ 7-year-oldhttps://indianexpress.com/article/cities/mumbai/bombay-hc-sets-aside-death-penalty-of-man-who-raped-7-year-old-5695333/

Citing lack of proper procedure, Bombay HC sets aside death penalty of man who ‘raped’ 7-year-old

Advocate for the accused, Yug Chaudhry, argued before the high court bench that the “procedural errors in the trial which has resulted in serious prejudice to accused which has necessitated de novo trial”.

Citing lack of proper procedure, Bombay HC sets aside death penalty of man who ‘raped’ 7-year-old
The trial court had altered the charges against the accused two days before he was awarded the death penalty.

The Bombay High Court on Thursday set aside a trial court order sentencing to death a 31-year-old man accused of raping and murdering a seven-year-old girl in Palghar. Citing a lack of proper procedure, the high court sent the case back to the trial court.

The trial court had altered the charges against the accused two days before he was awarded the death penalty.

A division bench of Justice B P Dharmadhikari and Justice Prakash D Naik said, “…we have found that proper procedure after alteration of charges has not been followed, this error needs to be corrected and for that purpose, remand is the only solution.”

The high court was hearing an appeal filed by the accused, a poultry farm worker in Palghar. The prosecution said the accused, who was known to the victim’s family, had kidnapped her from her house on February 24, 2014. The girl’s parents had noticed her absence at around 8.30 pm that day, following which they learnt from neighbours that a man — whom the parents identified as the accused from the description — had taken her away on a bicycle earlier in the evening. After a search for his daughter failed to yield results, the father approached the police. A day later, he was told that his daughter’s body was found behind a poultry farm and that she had been raped before being murdered.

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Advocate for the accused, Yug Chaudhry, argued before the high court bench that the “procedural errors in the trial which has resulted in serious prejudice to accused which has necessitated de novo trial”.

Chaudhry told the court that the evidence of all witnesses was recorded, following which the statement of the accused was recorded on August 17, 2016, under Section 313 of the CrPC. In a criminal trial, this section allows the accused to present their side against the charges they face, following which the final arguments from the prosecution and defence are presented. Chaudhry said the trial court had altered the charges against the accused after this stage, two days before the judgement was delivered on September 28, 2016. He said the court had dropped Section 366 (A) (procuration of minor girl) and changed Section 376 of the IPC (rape) to 376 (2)(F) (commits rape on a woman when she is under 12 years of age). He said the charge under Section 201 (causing disappearance of evidence of offence) of the IPC was added after all witnesses were examined and after the examination of Investigating Officer. He further said that sections under the Protection of Children from Sexual Offences Act were also altered by the trial court.

The advocate said that the three lawyers who were assigned to the accused as part of legal aid provided by the state government did not show “professional expertise”, giving the District Government Pleader who conducted the prosecution on behalf of State an “undue and unfair” advantage.

Additional Public Prosecutor Aruna Pai told the high court that charges had initially been framed on March 31, 2015, and were altered on September 26, 2016. She said the charges had been altered by the trial court under CrPC Section 216, which states that any court may alter or add to any charge at any time before judgment is pronounced.

The high court bench, in its order, said, “When relevant legal provisions are not looked into by advocates or by court, there cannot be a well-informed decision and just use of discretion. When two important sections which become relevant for the first time on 26/09/2014 are lost sight of, it cannot be said that application of mind by the trial court or its consideration is legal and valid.”